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 Concept of Law in Ethics, 
 
 THESIS ACCEPTED BY THE FACULTY OF CORNELL UNIVERSITY 
 FOR THE PH. D. DEGREE IN PHILOSOPHY. 
 
 Ferdinand Courtney French, A. B. (bkown) 
 
 Fellow in the Sage Scliool of Philosophy of Cornell University. 
 
 PROVIDENCE, R. I. 
 
 PRESTON & ROUNDS. 
 i8q2. 
 
GIFT or 
 
Digitized by the Internet Archive 
 
 in 2007 with funding from 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/conceptoflawinetOOfrenrich 
 
THK 
 
 Concept of Law in Ethics, 
 
 THESIS ACCEPTED BY THE FACULTY OF CORNELL UNIVERSITY 
 FOR THE PH. D. DEGREE IN PHILOSOPHY. 
 
 Ferdinand Courtney French, A. B. (b«own) 
 
 Fellow in the Sage School of Philosophy of Cornell University. 
 
 PROVIDENCE, R. I. 
 
 PRESTON & ROUNDS. 
 1892. 
 
fi)T^ 
 
 n^ 
 
 * « «• • • • 
 
 Copyright, 1892, 
 By F. C. FRENCH. 
 
5«ur bag ©efe^ fann un§ bie grei^eit gcben. 
 
 Goeike. 
 Romans xiii.y lo. 
 
 4274J0 
 
CONTENTS 
 
 CHAPTER I. 
 Jural Aspects of Ancient Ethics. 
 
 PAGE. 
 
 § I. Customary Law, ......... i 
 
 § 2. Written and Unwritten Law, ....... 4 
 
 § 3. Law and Nature, ......... 5 
 
 § 4. Stoic Law of Nature, ........ 6 
 
 § 5. Ethical Application of this Conception, .... 8 
 
 § 6. Stoic Doctrine and Roman Law, ...... 12 
 
 CHAPTER II. 
 
 Christian and Medieval Ethics. 
 
 § 7. Tendencies towards Juralism in Christian Ethics, . . 17 
 
 § 8. Thomas Aquinas, 20 
 
 CHAPTER III. 
 
 Modern Ethics. 
 
 § 9. Beginnings of Modern Ethics— Grotius, .... 24 
 
 § 10. Hobbes, 26 
 
 § II. Cudworth, Locke, Cumberland, ...... 30 
 
 § 12. Paley, 32 
 
 § 13. Kant, 34 
 
 CHAPTER IV. 
 
 The Moral Law. 
 
 § 14. Forms of the Concept, 38 
 
 § 15. Source of the Moral Law, ....... 42 
 
 § 16. Ends " " <. 44 
 
 § 17. Motive, 49 
 
 Bibliography, .......... 50 
 
/-; 
 
 (A 
 
 ^/^aX(</ 
 
 CHAPTER 11 
 
 § I. AJ^ST, in the primary sense of the term, is a rule of 
 human action prescribed by authority. - The use of this term 
 to express the order of nature is a derived one which became 
 current only after considerable historical development, i Even 
 this first-mentioned usage is primary only in a relative sense. 
 ^At the dawn of history we find men ruled by custom rather 
 than law. Clans, tribes and village communities were ruled 
 by institutions which mythology might explain as established 
 by the gods, or by the ancestors of the race, but in either case 
 for the living generation they were a fixed body of rules that 
 could not be infringed without incurring on the individual 
 and on the community the severe displeasuy^ of the gods, 
 and which men regarded as no more subject t6 change on their 
 part than the paths of the sun, moon and stars. History 
 opens with this reign of custom, but it must have been only 
 by a long evolution in prehistoric times that this ' cake of cus- 
 tom ' was established. -J In the struggle for existence among 
 primitive men nothing could have been of more importance 
 than organization. 2 The elimination of unorganized groups 
 by their better organized contemporaries must have brought 
 about the survival of those customs and common norms of 
 conduct which served to unify each group into ap organic 
 body. It was of little matter whether these customs wett such 
 as we should call good or bad, provided only they brought 
 the individual into subordination to the community, and en- 
 
 1 So. Holland, Elements of Jurisprudence, p. 15, and Zeller, Ueber Be- 
 griff und Begr'Undung der Sittlichen Gesetze, Vortrdge u. Abkandnngen, 
 Satnml, p. 189. Max Miiller points out a possible exception to this in the 
 Sanskrit /?/ta, which he explains as meaning originally the order of na- 
 ture and afterwards being applied to the moral order. 
 
 2 Bagehot, Physics and Politics. 
 
, « « • « * 
 " c « c • c c 
 
 2 THE CONCEPT OF LAW IN ETHICS. 
 
 abled the latter to stand together as a unit against all foes 
 from without, y We have, perhaps, an illustration of the pre- 
 historic state of society in the description of the Cyclops in 
 the Odyssey, a description that may well have been sug- 
 gested to the poet by the mode of life among some alien 
 and less advanced people : ^ 
 
 "They have neither assemblies for consulta^tion nor judi- 
 cial decrees, . . . but every one exercises jurisdiction 
 over his children and wives, and they pay no regard to one 
 another."^ 
 
 But whatever may have been the course of this prehistoric 
 evolution of institutions and ideas, the earliest historic pro- 
 totype of law is custom. ^ Or, if we may extend the term to 
 this pre-natal state of the concept, we may say that custom- 
 ary law was the progenitor of positive law.^ The etymology 
 of the word law, '' that which lies or is fixed or set," * and of 
 similar words in other languages, points back to the time 
 when laws were the established norms of immemorial custom 
 rather than the commands of a sovereign authority. The 
 head of the tribe, or the village council, in administering jus- 
 tice, were regarded as possessing only a judicial and never a 
 legislative function.^ "" 
 
 ^Among primitive peoples we find no distinction made be- 
 tween laws of the state, requirements of religious ritual, and 
 the demands of morality. Conduct in all these respects was 
 governed by an undifferentiated mass of rules, which were 
 enforced upon the individual, not only by the severest hu- 
 man penalties, but by the even more terrible fears of super- 
 human powers. Little real force, however, is required to se- 
 cure obedience to customary law. The immobility of habit, 
 public opinion, and superstition, all combine to make disobe- 
 dience well nigh impossible. -' 
 
 1 Maine, Ancteni Lavj^ p. 125. 
 
 2 Odyssey ix., 1 14. 
 
 3 Maine, Early History of histitutions. Lect. xiii. 
 
 4 Century Dictionary. 
 
 5 Maine, Ancient Law—''' It is certain that in the infancy of mankind, 
 no sort of legislature, not even a distinct author of law is contemplated 
 or conceived of. Law has scarcely reached the footing of custom ; it is 
 rather a habit." p. 8. 
 
THE CONCEPT OF LAW IN ETHICS. 3 
 
 ''There is no system of recorded law literally from China 
 to Peru," says Sir Henry Maine, " which, when it first emerges 
 into notice, is not seen to be entangled with religious ritual 
 and observance." 1 
 
 The general conclusion thus expressed by Maine as the 
 result of his studies of institutions in India, is equally true 
 of the early Greeks. This primitive confusion of law, relig- 
 ion and morality among the Greeks is well described in the 
 following passage from Grote : 
 
 ^ ** In historical Athens the great impersonal authority called 
 * The Laws,' stood out separately, both as guide and sanc- 
 tion, distinct from religious duty or private sympathies ; but 
 of this discriminated conception of positive law and positive 
 morality the germ only can be detected in the Homeric poems. 
 The appropriate Greek word for human laws never occurs. 
 Amidst a very wavering phraseology we can detect a grad- 
 ual transition from the primitive idea of a personal goddess 
 Themis, attached to Zeus, first to his sentences or orders 
 called Themistes, and next by a still farther remove to vari- 
 ous established customs, which these sentences were believed 
 to sanctify — the authority of religion and that of custom co- 
 alescing into one indivisible obligation." ^ 
 
 The word vofio:;, denoting etymologically "that which is 
 assigned or appointed," ^ is the proper Greek term for law. 
 This is the first word to acquire and retain anything like the 
 meaning which we now express by law. The Romans trans- 
 lated vofioQ hy lex and then carried over into Latin and handed 
 down to modern nations the conception which the Greeks 
 had acquired and embalmed in the word. The English word 
 has derived its meaning not so much from etymology and early 
 Teutonic uses, as from the combined influence of Greek, Latin 
 and Hebrew terms which it has been used to translate. In 
 tracing the development of the Greek concept of vofio^, there- 
 fore, we are studying the early history of our own concept of 
 law. This word was not used by Homer. It is found first in 
 Hesiod. At Athens i^6//oc was the name given especially to 
 
 1 Maine, Early Law and Custom. Chap. i. 
 
 2 Grote, History of Greece, vol. ii., p. no. 
 
 3 Liddell & Scott, Lexicon. 
 
4 THE CONCEPT OF LAW IN ETHICS. 
 
 the laws of Solon (those of Draco being called deaiiol) and then 
 generally to laws, ordinances, particularly to fundamental 
 laws in distinction from (pi^cpcafia special bills, or decrees. i 
 
 § 2. Since in early times legal and moral ideas were 
 indiscriminately combined under the general notion of cus- 
 tomary law, we must look for the beginning of the history 
 of the concept of law in morality, where the tendency to 
 discriminate between the two fields of conduct first manifests 
 itself. It is not a case of a concept developed in one sphere 
 of life and then carried over by analogy or metaphor to 
 another ; it is rather a case of differentiation. -^ We do not 
 find moral and legal institutions existing side by side and then 
 after a time the notions developed in one sphere transferred 
 to the other. Rather is conduct as a whole ruled by one 
 homogeneous mass of customs. The first beginning of the 
 distinction between moral and civil law is seen in the division 
 of custom or law into written and ?/?/wnV/^?2, ^The written 
 law, being the expressed will of the king or state, enforced by 
 penalties, corresponds to our notion of law in the jural 
 sense, while the unwritten law, which depended for its bind- 
 ing force on habit, public opinion, religious belief and con- 
 science, answers in a general way to our notion of moral law. 
 The unwritten law was regarded as the foundation and source 
 of the written. The latter only is changeable, the former 
 is original and abiding. ^This division of the law is very 
 common in Greek literature.^ One of the earliest and most 
 famous examples of this is in Sophocles. Antigone defies 
 the king, who has forbidden her to bury her brother in these 
 words : 
 
 " Nor did I deem thy edicts strong enough, 
 That thou, a mortal man, should'st over-pass 
 The unwritten laws of God that know not change. 
 They are not of to-day nor yesterday, 
 But live forever, nor can man assign 
 When first they sprang to being." ^ 
 
 Aristotle classifies laws as peculiar and universal — peculiar 
 laws being such as have been marked out by each people in 
 
 I Lexicon. 
 ^ 2 Schrriidt, Die Ethik der Alieti Griechen, p. 201. 
 
 3 Sophocles, Antigone, 1. 450, (Plumptre's translation.) 
 
THE CONCEPT OF LAW IN ETHICS. 5 
 
 reference to itself, and being partly written and partly un- 
 written — universal laws being those which are conformable 
 merely to the dictates of nature. " For there does exist 
 naturally one universal sense of right and wrong, which in a 
 certain degree all intuitively divine even should no inter- 
 course with each other, nor any compact have existed." ^ In 
 this connection Aristotle cites Empedodes as saying of a cer- 
 tain maxim "that it is not right here and wrong there, but a 
 principle of law to all. It is extended uninterruptedly 
 throughout the spacious firmament and boundless light." 
 Another term for the unwritten law is equity which has to 
 do with the intention of the lawgiver rather than the lan- 
 guage of the law, and with the whole tenor and principle of 
 the agent's conduct rather than with specific acts.^ Equity 
 may controvene the written law. In the Ethics he says of 
 the nature of the equitable, that it is a correction of law when- 
 ever the law is defective owing to its generality.^ Again he 
 says of equity that it "remains forever and varies not at any 
 time, neither does the universal law, for this is in conformity 
 to nature, but the written law does frequently vary." '^ 
 
 The reduction of a portion of the ancient customs to 
 writing and the notion thus introduced of a written law in 
 contrast with the unwritten law, must have been one of the 
 first steps toward the development of the concept of posi- 
 tive law. But even the written law differs essentially from 
 our modern notion of enacted law. It was not looked upon 
 as the recorded will of an established legislative authority, but 
 rather as a written precipitate of ancestral customs. Plato 
 and Aristotle regarded the distinction between law and cus- 
 tom as quite unessential. ^ 
 
 § 3. Another influence in developing the notion of posi- 
 itive law was the contrast which the Sophists, and later the 
 Cynics,^ made between law and 7iatiire.'^ The Sophists were 
 
 1 Aristotle, Rhetoric^ I., xiii., 2, (Browne's tranlation.) 
 
 2 Rhetoric, I., xiii., 17. 
 
 3 Ethics, V. 10. 
 
 4 Rhetoric, I., xv. 
 
 5 Schmidt, Die Bthik der Altefi Grieche?i, p. 202. -^ 
 
 6 Zeller, Socrates ajid the Socratic Schools, p. 322. 
 
 7 VOjiOQ and ifuac::. 
 
6 THE CONCEPT OF LAW IN ETHICS. 
 
 the individualists and iconoclasts of custom in the fifth 
 century. Hippias is represented in Xenophon as "disput- 
 ing the moral obligation of laws because they so often change, 
 while he acknowledges as divine or natural law only that 
 which is everywhere equally observed. In Plato he says that 
 law, like a tyrant, compels men to do much that is contrary 
 to nature." ^ 
 
 This opposition of law to nature must have made much 
 more definite in men's minds, than ever before, the notion of 
 a positive law dependent upon the will of men. It brought 
 out the distinction between legislation as a voluntary act, 
 creative of law, and the mere formulation of already existing 
 customs. Some of the Sophists went so far as to declare all 
 positive law to be arbitrary enactments set up by those in 
 power for their own advantage, and as laws and usage had 
 been regarded hitherto as the only moral authority, this doc- 
 trism seemed to dissolve at once all moral as well as political 
 obligation. The distinction between written and unwritten, 
 and the opposition of law to nature combined to develop and 
 make definite the notion of law as the enacted will of ra- 
 tional beings. 
 
 § 4. With Stoicism another idea came into prominence, 
 the idea of natural law or the law of nahire. In the Greek 
 conception of natural law we have something quite different 
 from the natural laws of modern science. We find here the 
 universal, unwritten norms of conduct and the order of physi- 
 cal phenomena combined under the single notion of law of 
 nature. Laws which prevailed among all nations and were 
 acknowledged as binding by all peoples, such as the sanctity 
 of oaths, the duty of hospitality, etc., could not, it was evi- 
 dent, have been founded by any prince, or city, or revealed 
 by the divinities or oracles of any particular people ; they 
 must have their source in the universal divine will and be re- 
 vealed by nature to all men in their own consciousness.^ 
 Such universal and unwritten laws as norms of human con- 
 duct, we have already seen, were widely recognized by the 
 
 1 Zeller, Tre-Socratic Philosophy. Vol. ii., p. 476, 
 
 2 Zeller, Ueher Begri^ tind Begyundutig der Sittlichen Geseize, p. 190. 
 
THE CONCEPT OF LAW IN ETHICS. 7 
 
 Greeks. Heracleitus was, perhaps, the first to connect ex- 
 pressly this divine law with the order of things in the physi- 
 cal world. 1 Often the two were set in opposition, and even 
 those who insisted most emphatically on the invariable neces- 
 sity of the natural order as, e. g, Empedodes, Plato, and 
 Aristotle, did not designate this by the term law.2 With 
 very few exceptions before the time of the Stoics this word 
 was applied exclusively to norms of human conduct, the 
 laws of nature, when this expression was used, meaning such 
 rules of conduct as were common to all men and binding 
 upon them by virtue of their very nature. 
 
 " It was the founder of the Stoic school," says Zeller, 
 "who first brought into common use the concept of law as 
 applied to the natural order of things." 3 The extension of 
 law from the sphere of human action to the physical world 
 was a natural consequence of the fundamental doctrines of 
 Stoicism. The Stoics believed in an ultimate ground and 
 cause of the world which was not merely the material sub- 
 stance of things, but was at the same time the creative 
 Reason. The natural order and necessity in the universe 
 they regarded as the expression of the will of that Ultimate 
 Reason and hence called it the law of nature. As man and 
 nature are both under the same divine lawgiver, no distinc- 
 tion was made between natural law and moral law.^ In the 
 absence of scientific precision the same confusion prevailed 
 throughout the Middle Ages. The laws that determine the 
 
 1 Zeller, Pre-Socratic Philosophy^ p. 41. An early example of the 
 concept of law in its broadest aspect is the saying of Pindar : 
 
 Nbfio^y 6 ndvTcov ^aadeh^ 
 
 duazcov T£ xal d&avdzcov. 
 
 2 Zeller, Ueber Begrzf, etc. Plato in the Trimaeus 83 E seems to use 
 the phrase Maws of nature' in something like the modern scientific 
 sense. Zeller finds one such case in Aristotle, see essay Ueber Begriff^ 
 etc., note 11. 
 
 3 Ibid. p. 192. 
 
 4 Chrysippus, according to Diog. Laert., vii. 88, calls the " common 
 law right reason which pervades all things, being identical with Zeus, the 
 ruler of the government of the universe." 
 
 VOyLOC, was frequently called by the Stoics Xoyoq, dpOo^, and Cicero says 
 Lex vera ratio est recta summi Jovis. — De legt'bus, ii. 4. For furtherex- 
 amples see Zeller, Stoics, Epicureans and Sceptics, p. 241, note. ^^ 
 
8 THE CONCEPT OF LAW IN ETHICS. 
 
 order of nature and those which express the duty of man 
 were regarded alike as divine commands. It is only since 
 the sixteenth and . seventeenth centuries that philosophers 
 and men of science have held a clear conception of natural 
 law as the expression of the uniformities of the phenome- 
 nal world, in distinction from the primary use of law as ap- 
 plied to norms of human conduct. 
 
 § 5. Were we tracing the history of the concept of law in 
 physical science, we should have now to consider what use 
 the Stoics made of this law of nature in explaining the mate- 
 rial world. Our interest here, however, is in the use they 
 made of the concept in their moral philosophy. 
 
 The central problem of Greek ethics was not to determine 
 the moral laws, but rather to find the chief good and the 
 mode of conduct which would secure it. It was the doctrine 
 of goods, rather than the doctrine of duties which gave the 
 key-note to the whole moral philosophy of the Greeks. With 
 the Stoics, as with their contemporaries and opponents, the 
 Epicureans, and with Aristotle before them, the aim is to de- 
 termine the highest good of life.^ The Epicureans pro- 
 nounced pleasure the highest good ; the Stoics, virtue,^ and 
 virtue they explained as conduct according to the laws of 
 nature.^ These laws of nature are not conceived so much 
 as imperatives of the divine will which ought to be obeyed 
 because thus commanded, but rather as ordinances of the 
 divine reason, compliances with which can alone secure weal 
 to rational beings. 
 
 The fundamental being of the universe was described by 
 the Stoics by a variety of terms, all meaning the same, one 
 primary force permeating the v/hole world — God, Soul of the 
 World, Providence, Destiny, Reason of the World, Univer- 
 sal Law, Nature.'^ The good in every system of thought 
 must be based on the general arrangement of the world, and 
 as the Stoics understood the world to be a cosmos governed 
 by Reason, they consequently found the good of the indi- 
 
 1 Zeller, Stoics, Epicureans and Sce't>tics, p. 225. 
 
 2 Ibid. p. 229. 
 \ 3 Ibid. p. 254. 
 
 '4 Ibid. p. 148 ff. 
 
THE CONCEPT OF LAW IN ETHICS. 9 
 
 vidual in submitting himself to the laws of this universal rea- 
 son. Obedience is not imposed upon men by authority 
 from without, but men are bound by their very desire for the 
 highest good to obey the laws of their own rational nature, 
 which are at the same time the laws of the rational universe. 
 The grand principle of human life, then, is to live according 
 to nature. But by nature the Stoics meant almost the oppo- 
 site of what is ordinarily meant by that term. To follow 
 nature with them is not to give loose rein to one's native 
 passions and emotions ; it is to conform to the universal and 
 rational.'^ Emotions and passions they regarded as a product 
 of the irrational elements^ in our make-up and as such to be 
 neglected by the wise men. Hence the modern usage of the 
 term " Stoical." This failure to provide for the legitimate ex- 
 ercise of the emotions is the prominent defect in the Stoic 
 theory of morals — a consequence which followed quite easily 
 from their too exclusively rational interpretation of nature. 
 An adequate ethics will find scope for all of man's faculties 
 and powers, for the symmetrical development of all sides of 
 his nature. 
 
 The Stoics denounced existing customs and preached the 
 doctrine of nature, but it was the rational, not the emotional 
 nature, and it was the nature of the future, and not the na- 
 ture of the past. They did not look for improvement in a re- 
 turn to some golden age of innocence, but in a progressive 
 moral culture of men according to the laws of the rational 
 nature. They set before themselves the type of a perfect 
 wise man, a type which they admitted no one had yet realized 
 in himself, but which was to them, nevertheless, the ideal 
 goal of moral effect. "Zeno and the rest, though they do 
 not claim to be wise, yet claimed to be ' advancing.' This no- 
 tion of conscious moral progress and self discipline is too 
 familiar now for us easily to believe that it was first intro- 
 duced into Greece in the third century B. C. It may be said, 
 
 1 Ibid. p. 240. 
 
 2 Grant, The Ethics of Aristotle, Vol. I., Essay vi. The A?icie7it Stoics, 
 
 p. 319- 
 
 3 " Emotion or passion is a movement of mind contrary to reason and 
 nature." 'Zeller, Stoics, etc., p. 244. 
 
10 THE CONCEPT OF LAW IN ETHICS. 
 
 indeed, to be contained implicitly in Aristotle's theory of 
 * habits,' but it is in reality the expression of a new and 
 totally different spirit. By this spirit we shall find the later 
 Stoics deeply penetrated. It constituted perhaps the most 
 purely 'moral' notion of antiquity, as implying the deepest 
 associations, which are attached to the word moral." ^ 
 
 Closely connected with the modern concept of moral law 
 is the idea of duty. Though quite in harmony with their gen- 
 eral mode of thought and intense moral earnestness, the no- 
 tion of duty as a distinct moral concept does not seem to 
 have been grasped by the Greek Stoics.^ In the term 
 xa^yjxov, 'the suitable,' 'the fitting,' 'the proper,' we have 
 the 'lineal antecedent' of our duty. This is the term 
 which was translated into Latin by officium. It was probably 
 under the influences of the Roman sternness of character 
 and reverence for law that this notion of duty as the correlate 
 of law first came to consciousness.^ 
 
 The Stoics exalted the individual in contrast with the insti- 
 tutions and laws of human states, but only to subordinate him 
 again to the universal Reason and the laws of the cosmic 
 state. The cosmopolitanism of the Stoics was an integral 
 part of their moral philosophy. It was a cosmopolitanism, 
 too, in the broadest etymological sense of the term ; ^ it not 
 only brought the individual into a common citizenship and 
 brotherhood of all nations, but also made him as a rational be- 
 ing a partaker of the rational life of the whole cosmos. 
 The universe is one city governed by the one law of nature 
 and hence all rational beings, as subjects of this law, must 
 be fellow-citizens of the one world-city.^ The fact that the 
 founders of the Stoic school were men of foreign birth*^ who 
 
 r Grant, Ethics of Aristotle. Vol. I., p 324. 
 
 2 " Und so fehlt denn der Begriff der Pflicht den Sjstemen der Griechen 
 vollig." Ziegler, Die Ethik der Griechen uttd Roiner, p. 241. 
 
 3 Grant, The Ethics of Aristotle. Vol. I., Essay vi., p. 325. 
 
 4 Ibid. p. 326. 
 
 5 Zeller, Stoics, etc., p 326. " Reason is the common law for all, and 
 those who owe allegiance to one law are members of one state." p. 330. 
 
 6 Zeller says (vS/o/c.t, etc., p. 36) : " Nearly all the most important Sto- 
 ics before the Christian era belong by birth to Asia Minor, to Syria, and 
 to the islands of the Eastern Archipelago." Grant gives a list of the 
 
THE CONCEPT OF LAW IN ETHICS. II 
 
 came to Greece in adult life, was doubtless influential in en- 
 abling them to transcend the limitations of Hellenic insti- 
 tutions. The conquests of Alexander, too, had broadened 
 Greek knowledge of the barbarians and made it possible for 
 the thinkers of the third century to realize the common 
 humanity in all peoples as it had never been possible before. 
 But while the foreign birth of the early Stoics may have 
 made it easier for them to deduce the cosmopolitan conclu- 
 sions of their system, and the Macedonian conquests may 
 have made their hearers more accessible to such views, yet 
 despite all the influences of these two concurrent circum- 
 stances, we must regard the cosmopolitanism of the Stoics 
 as a necessary consequence of their fundamental conception 
 of the universe as rational, and all men as subject to the law 
 of universal reason. Plato had sunk the individual in the 
 state. The Sophists regarded men as lawless atoms, essen- 
 tially unrelated. By the doctrine of the Universal Reason 
 and the law of nature the Stoics escaped both of these ex- 
 tremes. While doing full justice to the individual, they still 
 emphasized his subordination to law and order. 
 
 Due weight had been given to the moral significance of 
 the state and legal institutions in the earlier systems,^ but 
 the Stoics were the first to take the term law out of its 
 strictly jural sense and apply it in a wider and more distinct- 
 tively moral field. The deep ethical import of law is per- 
 haps nowhere more clearly manifested than in the famous 
 hymn of Cleanthes to Zeus : " Thou makest order out of 
 disorder, and what is worthless becomes precious in thy 
 sight ; for thou hast fitted together good and evil into one 
 and hast established one law, that exists forever. But the 
 
 earlj Stoics and their places of birth {Ethics of Aristotle, Vol. I, p. 308), 
 and advances the theory that the peculiar moral earnestness of the Stoic 
 philosophy was of Semitic origin and ' alien from the childlike and 
 unconscious spirit of the Hellenic mind, with its tendency to objective 
 thought and the enjoyment of nature.' 
 
 I Schmidt Die Ethik der Alteti Griecken, p. 198. " Euripides refers 
 the distinction of right and wrong to the laws. Kallicles in the Gorgias 
 (482e-483 c) designates the content of morality as that which corresponds 
 to the law and so takes law and morality as meaning the same." Ibid, 
 p. 200. 
 
12 THE CONCEPT OF LAW IN ETHICS. 
 
 wicked fly from thy law, unhappy ones, and though they de- 
 sire to possess what is good, yet they see not, neither do they 
 hear, the universal law of God. . . . O Zeus, giver of 
 all things, who dwellest in dark clouds, and rulest over the 
 thunder, deliver men from their foolishness. Scatter it from 
 their souls, and grant them to obtain wisdom, for by wisdom 
 thou dost rightly govern all things ; that being honored we 
 may repay thee with honour, singing thy works without 
 ceasing, as is right for us to do. For there is no greater thing 
 than this, either for mortal men or for the gods, to sing rightly 
 the universal law." i 
 
 § 6. The notion of law thus borrowed from jurisprudence 
 was destined to be returned with interest. The most signal 
 triumph of the Stoic doctrine of natural law was on the field 
 of Roman law. Ziegler says of the philosophy of the Stoa 
 that it ''is of the greatest significance for the history of 
 Ethics not only on its own account, but also above all, be- 
 cause it entered the Roman world as a ferment and exercised 
 there in troubled times a mighty influence on the best minds 
 theoretically and practically. "2 Xhe conception of a law of 
 nature furnished the statesmen and jurists of Rome with a 
 moral basis for their law and an ideal by which to direct its 
 reformation and development.^ No other- idea of Greek 
 philosophy found such a keen appreciation at Rome or exer- 
 cised anything like as great an influence on Roman thought. 
 The Romans had no taste for metaphysics and Greek specu- 
 lations in general excited only a dilettante interest among 
 them. 
 
 Two kinds of law were early recognized at Rome. At the 
 the time when Greek philosophic thought began to be felt 
 among the Romans these two bodies of law had been develop- 
 ing for centuries not entirely without influence on one an- 
 
 1 This hymn is preserved by Stobaeus, EcL Phys., i, 30. The Greek is 
 given by Ueberweg, History of Philosophy, Vol. I., p. 197. The selection 
 quoted is from the rendering of Grant, Ethics of Aristotle, Vol. I, p. 329. 
 
 2 Ziegler, Die Ethik der Griechen u»d Rovier, p. 165. 
 
 3 For the influence of Stoicism on Roman Law see Grant, Ethics of 
 Aristotle, Vol. I., p. 340, ff; Morey, Outlines of Rotnan Laiv, p. lo^, ff; 
 Maine, Ancient Laiv, Chap HL, ' Law of Nature and Equity.' 
 
THE CONCEPT OF LAW IN ETHICS. 1 3 
 
 Other, but yet each by itself and along its own path. The 
 civil law {jus civile) was the law of the Roman citizen. It 
 owed its origin to the religious conception of the early 
 Romans^ and was regarded as binding upon and applicable to 
 such only as participated in the religion of the city. This 
 law was first put in writing in the former Twelve Tables. 
 The presence of foreigners in the city and the needs of com- 
 merce early showed the necessity of a law applicable to those 
 who were not citizens. Since strangers could not be judged 
 by the sacred civil law of Rome, the Praetor to whose court 
 such cases were brought sought out and applied the various 
 legal principles common to the surrounding Italian tribes. 
 It was the custom for the Praetor each year, on beginning his 
 term of office, to publish an edict setting forth the principles 
 on which he proposed to adjudicate the cases brought before 
 him. Each new Praetor published the edict of his prede- 
 cessor, making such additions as he deemed advisable. As 
 this body of law was established to judge foreigners by, and 
 was supposed to consist of laws common to all the tribes and 
 nationalities represented at Rome, it was called the jus gen- 
 tium or Law of Nations. Constructed thus from principles 
 common to a number of tribes, tho. jus gentium was much less 
 cumbered by legal technicalities and formulas and was much 
 more liberal and equitable than the jus civile. In spite of 
 the contempt which the Romans had for it as the law of for- 
 eigners it still exercised a humanizing influence over the civil 
 law itself. 
 
 From the middle of the second century B. C. on, Greek 
 philosophy was studied by the leading minds at Rome. 
 Epicureanism helped to break down the superstitious fears of 
 the old gods, but its ethics met with no marked response. 
 The ethics of Stoicism, however, appealed to the moral sense 
 of the nation. Law took on a new and profoundly ethical 
 aspect. Its ultimate seat and authority was seen to be not 
 
 I " This religion had produced laws; the relations among men — prop- 
 erty, inheritance, legal proceedings — all were regulated not by the princi- 
 ples of natural equity, but by the dogmas of this religion, and with a view 
 to the requirements of its worship." De Coulanges, The Anctetit City, 
 P- 519- 
 
14 THE CONCEPT OF LAW IN ETHICS. 
 
 in the founder of the city or in the will of changeable deities, 
 but in the unchangeable nature of things. As the Romans 
 compared their actual laws with the Stoic ideal of natural 
 law, they saw that the despised yV^i- gentumt came much nearer 
 to that ideal than their revered jus civile. It possessed in a 
 far higher degree those marks of simplicity and harmony 
 which have always been regarded as characterizing the works 
 of nature. The old feeling of contempt for the jus geiitiuvi 
 gradually gave way and the Roman Jurists brought up under 
 Stoic teachings came to look upon it with reverence as a par- 
 tial embodiment, or perhaps as a remnant of that ancient 
 law of nature. No one contributed more to this change of 
 sentiment than Cicero. 'The first important attempt made 
 by the Roman writers to ground law upon nature we find in 
 the ' Laws ' of Cicero where the fundamental proposition is 
 laid down that man is born for justice and that law and equity 
 are not a mere establishment of opinion, but are an institu- 
 tion of nature.'i 
 
 Legal development and reform under the Republic had 
 been empirical, unconscious, so to speak, the result of pro- 
 cedure. Under the Empire, however, guided and stimulated 
 by the ideal of natural law, progress was conscious and rapid. 
 The old civil law became more and more circumscribed and 
 one after another of its formalities was abandoned. 'The 
 preference accorded by jurists and judges to the jus gentium 
 over the jus civile is insufficient to account for these and 
 many other changes in the same direction, as well as for the 
 ever increasing tendency evinced to subordinate word and 
 deed to the voluntas (intention) from which they arose. 
 They are rather to be attributed to the striving on the part 
 of many after a higher ideal, to which they gave the name of 
 jus naturale'^ Among the intensely practical Romans this 
 ideal of law worked a reformatory and never a revolutionary 
 influence, as has been the case in modern times. 'The 
 value and serviceableness of the conception arose from its 
 keeping before the mental vision a type of perfect law and 
 
 "- 1 Morey, Outlines of Roman Law. 
 ^ 2 Muirhead, Lavj of Rome^ p. 297 
 
THE CONCEPT OF LAW IN ETHICS. 1 5 
 
 from its inspiring the hope of an indefinite approximation to 
 it, at the same time that it never tempted the practitioner or 
 the citizen to deny the obligation of existing laws which had 
 not been adjusted to the theory. ... I know no reason 
 why the law of the Romans should be superior to the laws of 
 the Hindoos, unless the theory of Natural Law had given it 
 a type of excellence different from the usual one. In this 
 one exceptional instance, simplicity and symmetry were kept 
 before the eyes of society whose influence on mankind was 
 destined to be prodigious from other causes, as the charac- 
 teristic of an ideal and absolutely perfect law.'^ 
 
 The laws of Rome as finally formulated by the great jurists 
 and handed down to posterity was the happy union of Roman 
 practice and Greek theory. The Stoic notion of natural law 
 furnished an ideal and ethical basis for the practical legal 
 institution of Rome, and in so doing gave them a breadth 
 and depth of meaning that has made them of incalculable 
 value for all time.^ In the code of Justinian the theory of 
 law of nature was preserved through the Middle Ages. Un- 
 der the influence of the Church and of the Romanized cities 
 the old law as a body of practical rules was kept in use by 
 the Germanic conquerors even in the darkest ages. Scien- 
 tific study of the law and its principles, however, was sus- 
 pended and not revived till about the beginning of the twelfth 
 century. It was then that the University of Bologna be- 
 came famous as a seat of legal studies, and never since has 
 the law of Rome ceased to be studied in the principal insti- 
 tutions of learning in Western Europe. 
 
 It would be a most interesting historical study to go on 
 from this point and trace the influence of the Stoic doctrine 
 of law of nature embodied and preserved as it was in Ro- 
 man law ;3 to show how this doctrine effected the develop- 
 
 1 Maine, Ancient Laiv, p. 76, 78. 
 
 2 (Roman Law) " endures still, furnishing the spirit, principles, and to a 
 great extent the substance of all modern bodies of law, second in for- 
 warding civilization to no single force save Christianity." Andrews, In- 
 stitiUes of General History, p. 78. 
 
 3 Maine, Ancient Laiv, Chap. IV. ' The Modern History of the Law 
 of Nature.' " The importance of this theory to mankind has been much 
 greater that its philosophical deficiencies would lead us to expect." p. 74. 
 
1 6 THE CONCEPT OF LAW IN ETHICS. 
 
 ment of jurisprudence in France ; how the alliance with the 
 lawyers enabled the king to solidify and centralize the mon- 
 archy ; how, later, Rousseau made of this jural doctrine a 
 political doctrine, which thus became the watchword of the 
 French Revolution ; ^ how the same doctrine gave a theo- 
 retic basis^to the men who carried through the English Rev- 
 olution, and how again the same thought learned from' Locke, 
 Montesquieu and Rousseau animated the American Revolu- 
 tion. We must not turn aside, however, to follow this notion 
 of natural law through the tangled web of jurisprudence, 
 theories of the state, and practical politics. Our purpose here 
 is to trace the notion of law in the principal systems of ethics 
 noticing the ethical ideas in jurisprudence and politics only 
 so far as they have had a reflex influence on moral philosophy. 
 
 1 Ibid. p. 80: "The theory of Natural Law is the source of most all 
 the special ideas as to law, politics and society which France, during the 
 last hundred years has been the instrument of diffusing all over the 
 western world." 
 
THE CONCEPT OF LAW IN ETHICS. 1 7 
 
 CHAPTER II 
 
 § 7. In the Middle Ages morals and religion, ethics and 
 theology, were inextricably confounded. Nor could we ex- 
 pect it to have been otherwise. Classical culture had gone 
 out and the only intellectual life of the times was in the 
 Church. Philosophy was the handmaid of theology. It is, 
 therefore, in the works of the Christian theologians that we 
 must look for a continuation of the stream of ethical thought. 
 Remembering the stern denunciation which the founder of 
 Christianity pronounced against the legalism of the Scribes 
 and Pharisees, and his constant insistance upon 'inwardness' 
 i. e., a rectitude of heart and spirit and a positive good-will 
 (/J dydTTTJ), we might expect to find the notion of law playing 
 but a small part in Christian Ethics. Three facts may be 
 mentioned whose influence on Christianity combined to give 
 a jural form to its moral teachings : 
 
 I. The Hebrew origin of Christianity. 
 ' As among all early peoples, so in the case of the Israelites, 
 religion, morality and civil law were presented to the popu- 
 lar consciousness in one undifferentiated mass of rules. 
 The law of Moses, the code of ancient Israel, combined in 
 its scope rules of worship, norms of moral conduct, and the 
 legal ordinances of the nation. All alike indiscriminately 
 were regarded as the express commands of Jehovah. The con- 
 ception of their national god as a god of righteousness gave a 
 peculiar prominence to the ethical portion of these com- 
 mands. We find, therefore, the Decalogue combining, as it 
 does, the fundamental principles of religion and the most es- 
 sential moral norms, early regarded as the core of the He- 
 brew code, and after the early Christians had freed them- 
 
1 8 THE CONCEPT OF LAW IN ETHICS. 
 
 selves from the trammels of the old ceremonial law, the 
 *Thou shalt ' and the 'Thou shalt not' of Sinai still thun- 
 dered in the consciences of men as the veritable law of God. 
 2. A second fact which had an influence in giving a jural 
 form to Christian conception of morality was the three cen- 
 turies of hostility and practical separation between Christian- 
 ity and the Empire. 
 
 In its attitude toward the state Christianity presents a 
 marked contrast to both Judaism and paganism. The con- 
 queror of the nations had a place for the gods of all the na- 
 tions conquered. But Christianity was not a national religion 
 and the Roman government could find no place for it. Its 
 aim was to establish a kingdom not of this world, a spiritual 
 kingdom which the rulers of this world could not understand. 
 The clear demarkation of the two fields of duty in the princi- 
 ple of the founder, * render unto Caesar the things that are Cae- 
 sar's and unto God the things that are God's,' presented a 
 distinction between religion and jurisprudence that was 
 wholly foreign to ancient philosophy and statecraft. This 
 distinction in thought became an actuality in practice during 
 the centuries of persecution to which the new religion was 
 subject.- Even when Christianity became the religion of 
 the state, the result was rather to free the state from the 
 cumbersome formalities of the ancient religion, than to 
 impose upon it any new ones.^ However later ecclesiastics 
 might endeavor to subordinate the temporal to the spiritual, 
 the distinction in thought at least was never lost sight of, 
 and we have again to-day in this country, if not in Europe, 
 the separation of Church and State in practice as well as in 
 theory. 
 
 Now during this period of antagonism between the Chris- 
 tians and the Empire, they made a constant effort to have 
 just as little as possible to do with the secular courts. The 
 Hebrew scriptures were regarded as revealing a divine code 
 of laws, and by means of this code the Christians constituted 
 themselves * an ordered community essentially distinct from 
 
 I "Christianity is the first religion that did not claim to be the source 
 of law" — last chapter of De Coulanges, The Ancient City. 
 
THE CONCEPT OF LAW IN ETHICS. 1 9 
 
 the state.' This very separation from the jurisprudence of 
 the state served to stamp upon the peculiar moral maxims of 
 Christianity a jural form, since for the first three hundred 
 years they had actually taken the place of all civil law. The 
 use of penances and excommunication as temporal sanctions 
 of the divine law intensified the legal aspect of Christian 
 ethics. 
 
 In comparison with Greek ethics, Sidgwick says that "the 
 first point to be noticed as novel is the conception of mo- 
 rality as the positive law of a theocratic community, possess- 
 ing a written code imposed by divine revelation, and sanc- 
 tioned by express divine promises and threatenings." ^ We 
 have already seen that among the Greeks the unwritten laws 
 and later the law of nature, had a highly ethical import, and 
 were often regarded as of divine origin. But the notion of 
 command, the expression of a will, was never more than dimly 
 conceived in the background. These laws were principles of 
 conduct by which alone virtue or happiness could be attained, 
 rather than the imperatives of a divine lawgiver sanctioned 
 by rewards and punishments. In Judaism and Christianity 
 the notion of the imperative came into the foreground. 
 
 3. Besides the Hebrew origin and the peculiar circum- 
 stances of its early history, Christianity in the West was sub- 
 ject to a Roman influence which made for legalism. 
 
 The peculiar jural bent of the best Roman thought and 
 the high success of Rome's legal institutions exerted a power- 
 ful effect on Latin Christianity. The very language was sat- 
 urated with legal concepts. The mere translation of the 
 New Testament into Latin gave to Christian doctrine a de- 
 cided jural tone that had been quite unsuspected in the Greek. 
 God was no longer the Heavenly Father of the common man, 
 or the Universal Reason of the Greek philosopher, so much 
 as the Moral Governor of the world bound to maintain a just 
 government. 
 
 Besides this general influence upon Christian thought from 
 the jural cast of the Roman mind, there was an even more 
 specific influence from Roman law itself. The Church was 
 
 I Sidgwick, History of Ethics, p. no. 
 
20 THE CONCEPT OF LAW IN ETHICS. 
 
 in many ways the successor and heir of the Empire and it 
 received no heritage more valuable to itself or for modern 
 civilization than the civil code of the Eternal City. The ec- 
 clesiastical authorities not only exerted all their influence 
 over the Teutonic invaders towards maintaining Roman ju- 
 risprudence, but they adopted the Roman law as the Canon 
 law of the Church. 
 
 § 8. All of these legalizing influences had had time to 
 work thfeir full effect on Christian thought when a century 
 afCer the revival of the scientific study of Roman law at Bo- 
 logna '* a genuinely philosophic intellect, trained by a full 
 study of the greatest Greek thinker, undertook to give 
 complete scientific form to the ethical doctrines of the Cath- 
 olic Church."! In the ethics of Thomas Aquinas, as in- 
 deed in his whole philosophy in general, there is an attempt 
 to combine and harmonize the teachings of the New Testa- 
 ment and the Church Fathers with those of the Greek philoso- 
 phers, or more specifically still, to harmonize Augustine as 
 the representative of Christian doctrine with Aristotle as * the 
 philosopher ' J^ar excellence. 
 
 In this system the notion of law occupies a highly prominent, 
 if not the first place. It was the influence of Aristotle, doubt- 
 less, that led Aquinas to give the first place in his system to the 
 doctrine of goods and virtues. The most complete statement 
 of his moral philosophy is given in the first part of the sec. 
 ond division of the Summa Theologica. He begins with a 
 discussion of the chief good which he finds to be the blessed- 
 ness of union with God. He next treats of the virtues and 
 following * the philosopher ' divides them into intellectual and 
 moral. The moral virtues again are classified into the natu- 
 ral or acquired and the theologic or instilled. Those virtues 
 which may be acquired by the natural man are the four cardi- 
 nal virtues of the Greeks, Prudence, Temperance, Fortitude^ 
 and Justice. Besides these, as necessary to the highest 
 end of man, communion with God, are the three theologic 
 virtues which are instilled in men by divine grace — Faith, 
 Hope, and Love. This analysis of the virtues is followed by 
 
 I Sidgwick, History of Ethics, p. no. 
 
THE CONCEPT OF LAW IN ETHICS. 21 
 
 a subtle discussion of sin and then the subject of law is taken 
 up.^ UThomas defines law as "an ordinance of reason for the 
 common good which is promulgated by him who has charge 
 of the community."^ Four kinds of law are distinguished — 
 eternal, natural, human, and divine. 
 
 The eternal law is the divine reason of the supreme gov- 
 ernor of the universe by which all creatures, rational and 
 irrational are ruled. This law, in so far as it applies to ra- 
 tional creatures, is given to them in two ways — naturally and 
 by special revelation. Hence the two kinds, natural and di- 
 vine, corresponding to the two modes by which the law is 
 made known to men. A portion of the eternal law God has 
 so implanted in men's minds as to be known by natural rea- 
 son. ^ This is the law of nature. All rational action aims 
 at some good. The first principle, therefore, of natural law 
 is that good should be done and sought, and evil avoided. 
 Upon this principle are founded all the other precepts of the 
 law of nature for the sake of whatever the practical reason 
 naturally apprehends to be human goods.* Human laws are 
 the special rules of particular communities deduced by the 
 reason from the precepts of natural law. The process of the 
 practical reason is the same as that of the speculative reason ; 
 both proceed from certain principles to certain conclusions. 
 "Just as in the speculative reason from indemonstrable prin- 
 ciples naturally known are drawn conclusions of different 
 sciences, with the knowledge of which we are not naturally 
 endowed, but which is found out by the industry of reason ; 
 so also from the precepts of natural law, as if from certain 
 
 1 For a brief account of Thomas's ethics see Sidgwick, History of Eth- 
 ics, p. 140 ff; also Ziegler, Oeschickte der Christlichen Ethik^ p. 282, ff. 
 
 2 Thomas Aquinas, Smnma Tkeologica, Prima Secundae, Quaest. xc, 
 Art. IV. " Et sic ex quatuor praedictis potest coUigi definitio legis, quae 
 nihil est aliud quam guaedam rationis ordinatio ad bonum commune, et 
 ab eo qui curam communitaiis habet, promulgata." 
 
 3 " Promulgatio legis naturae est ex hoc ipso quod Deus eam mentibus 
 hominum inseruit naturaliter cognoscendam," Qii. xc, Art. IV. "Lex 
 naturalis nihil aliud est quam participatio legis aeternae in rationali crea- 
 tura." Qu. xci., Art. n. 
 
 4 Ibid. Qu. xciv., Art. II. 
 
22 THE CONCEPT OF LAW IN ETHICS. 
 
 common and indemonstrable principles, it is necessary that 
 the human reason proceed to more particular rules, and 
 these are human laws provide the other conditions deter- 
 minative of law be observed."^ --^ 
 
 Unjust laws, i. e., such as are contrary to human good, are 
 not binding in the forum of conscience, though for the sake 
 of avoiding scandal and disturbance, it may be better to obey 
 them. But laws contrary to divine good are in no wise to 
 be observed.2 We ought to obey God rather than man. All 
 inferior governors derive their authority from the eternal law 
 of the supreme governor. Human law, therefore, in so far 
 as it accords v/ith right reason, is derived from eternal law.^ 
 
 Obedience to the law of nature suffices for attaining to the 
 natural or acquired virtues. Since, however, man is ordained 
 to an end higher than the natural, it is necessary for the 
 direction of human Hfe that we have besides natural and 
 human law divine law given by God to men by special reve- 
 lation. This divine law is double^ — the one revealed in the 
 Old Testament through the instrumentality of angels, the 
 other in the New Testament by God himself made man. 
 The old law seeks sensible and terrestrial good, the new one 
 intelligible and celestial good. The first summoned the peo- 
 ple to the earthly kingdom of the Canaanites, the latter to 
 the kingdom of heaven. The old promises temporal things, 
 the new promises eternal life. The old controls the hand, 
 the new the mind. The motive of the old was fear, of the 
 new love. Of the old law the ceremonial and judicial pre- 
 cepts are no longer obligatory, but the moral precepts, par- 
 ticularly as given in the Decalogue, are still binding 
 upon Christians. The new law is variously designated 
 as the law of the Gospel, law of love, law of grace, etc. Be- 
 sides giving commands it also confers upon the faithful 
 strength for the fulfilment of these commands. The divine 
 
 1 Ibid. Qu. xci., Art. III. 
 
 2 Ibid. Qu. xcvi., Art. IV. 
 
 3 Ibid. Qu. xciii., Art. III. 
 
 4 These two laws are not related to each other as two species, e. g., 
 horse and cow, but as the imperfect to the perfect, e. g., boy and man. 
 Qu. xci , Art. V. 
 
THE CONCEPT OF LAW IN ETHICS. 23 
 
 law is ordained to secure the communion of men with God. 
 To its positive commands "without which the order of virtue, 
 which is the order of reason, could not be observed," it adds 
 as counsels the monastic virtues of poverty, celibacy, and 
 obedience, which, though not obligatory, afford a superior 
 means for attaining to the perfect life.i 
 
 In Thomas Aquinas we have the culmination and epitome 
 of Scolasticism, " the crowning result of the great construc- 
 tive effort of mediaeval philosophy." 2 His influence has 
 been very great, both on the theology of the Catholics, by 
 whom he is still regarded as the official philosopher of the 
 Church, and also on the theology of Protestants. The part 
 which the jural view of morality plays in his ethical system 
 illustrates very fairly the position of this view in Christian 
 ethics in general. The Decalogue, with its never-faiUng ap- 
 peal to the moral consciousness, has been to Christians and 
 to all who have come under the influence of Christianity the 
 preeminent summary of moral principles, and, being expressed 
 as the command of God, it has appeared as a moral law. 
 Thus the notion of morality as a code of laws has been deeply 
 stamped on popular thought and in only a slightly less de- 
 gree on the would be scientific systems of ethical philos- 
 ophers. Morality and obedience to the Ten Commandments 
 are to many almost synonymous terms, and this fact, together 
 with the other influences already mentioned, has given a 
 prominently jural form to the ethics of the Church in all 
 ages — in modern times as well as in the Middle Ages. 
 
 1 " Lex divina convenienter proponit praecepta de actibus omnium vir- 
 tutum, . . . but yet quaedam sine quibus ordo virtutis, qui est ordo 
 rationis, observari non potest, cadunt sub obligatione praecepti ; quae- 
 dam vero quae pertinent ad bene esse virtutis perfectas, cadunt sub ad- 
 monitione consilii." Qu. c, Art. II. 
 
 2 Sidgwick, History of Ethics, p. 147, 
 
24 THE CONCEPT OF LAW IN ETHICS. 
 
 CHAPTER 
 
 § 9. Having thus briefly sketched the influence of jural 
 concepts in ancient and mediaeval ethics, we come now to 
 modern systems. Mediaeval philosophy was characterized 
 by submission to authority — on the one hand to the Church, 
 and on the other to Aristotle. Modern philosophy yields to 
 no authority, but facing freely the problems of the universe, 
 seeks a solution which shall force irresistible conviction upon 
 every intelligence. In the modern attempt to establish mo- 
 rality on an independent foundation, /. ^., independent of spe- 
 cial revelation and of ecclesiastical authority, the notion of 
 the law of nature was the first principle seized upon. If 
 we examine the moral philosophy of Aquinas two points pre- 
 sent themselves on which conceivably an independent, ra- 
 tional morality might be founded — (i) the acquired virtues, 
 (2) the law of nature. It was the latter of these principles 
 which actually served as the starting point of modern ethics. 
 
 After the combined influences of Renaissance and Refor- 
 mation had effectually undermined the traditional confidence 
 in the old authorities, the need of a new ethics was first felt 
 in politics. Wherever there was a difference of faith be- 
 tween king and subjects, a new question as to the duties of 
 allegiance was raised, and now that the general supremacy 
 of the Pope over the nations was no longer recognized a new 
 theory was required to determine the relations and duties of 
 independent states to one another. It was for the purpose 
 of solving the problems arising from the changed relations 
 of nations that Grotius composed his epoch-making work, 
 De Jure Belli ct Paeis^ — the work which is universally recog- 
 
 I Paris, 1625. 
 
THE CONCEPT OF LAW IN ETHICS. 25 
 
 nized as the foundation of the modern system of Interna- 
 tional Law. The basis on which he erected his system was 
 the old Stoic theory of the law of nature as it had been 
 handed down by the Roman jurists and ecclesiastical mor- 
 alists. 
 
 Grotius defines natural law as the " dictate of Right Rea- 
 son, indicating that an act, from its agreement or disagree- 
 ment with man's rational and social nature, is morally dis- 
 graceful or morally necessary." ^ Here we find the law of 
 nature defined in a manner broad enough to include a moral 
 as well as a legal code. According to the theory of Grotius, 
 though God is the creator of nature and her laws, yet the 
 nature of things when once created remains ever after un- 
 changeable and unaffected by the divine will. In the nature 
 of man, then, by the use of the reason, we may find the fun- 
 damental principles of morals and jurisprudence. Now man 
 is distinguished from other animals by his peculiar capacity 
 for society, hence from the nature of man as a social being 
 may be deduced the principles which should govern his con- 
 duct in society. The utility of social laws is also recognized 
 as a secondary principle. But the utility is only secondary. 
 Even if there were no advantage to be attained from it, man's 
 very nature as social would require him to submit to the laws 
 of society. Since now these are laws of man's nature itself, 
 they are binding upon him in the natural state before he has 
 united with his fellows and by an ** express or tacit pact" 
 formed a state. Just as individuals, while in the state of na- 
 ture and as yet subject to no sovereign power, were never- 
 theless bound by the laws of nature, so modern nations which 
 are related to each other like persons independent of any au- 
 thority, are still under obligation to observe the laws of na- 
 ture in their dealings with one another.^ 
 
 r Sidgwick, History of Ethics, p. 160. 
 
 2 "The grandest function of the Law of Nature was discharged in giv- 
 ing birth to modern International Law and to the modern Law of War." 
 Maine, Ancient Lavj, p. 96. 
 
 For a brief account of Grotius and his place in the history of ethics see 
 Jodl, Geschichte der Eihik in der neueren Philosofhie, Bd. i., Cap. III., 
 Absch. 5. 
 
26 THE CONCEPT OF LAW IN ETHICS. 
 
 § 10. The theory of the state propounded by Thomas 
 Hobbes may be regarded as the beginning of independent 
 ethics in England. Beyond a few pregnant suggestions 
 Bacon had done little in moral philosophy. The current 
 view of the law of nature furnished Hobbes with a starting 
 point. But while employing much the same language his 
 theory of morals is in essence almost the antithesis of that 
 of Grotius. In both men the aim was to establish a theory 
 of the state, and they concern themselves with ethics only 
 so far as is necessary for this purpose. While the chief aim 
 of Grotius's work was to determine the relations of independ- 
 ent states, Hobbes devoted himself to determining the rela- 
 tions of sovereign and subject in the same state. Both seek 
 a foundation for their theories in morals, but while Grotius* 
 finds that in the social impulses of man's nature, itself, 
 Hobbes regards man by nature as impelled only by self- 
 interest and all moral norms as springing from the state and 
 the civil law. The ethical speculations involved in Hobbes's 
 theory of the state and the attacks called out in opposition 
 determined the development of moral philosophy in England 
 for nearly a century. 
 
 Ths psychological basis of Hobbes's theory is frankly ego- 
 tistic. "Of the voluntary acts of every man the object is 
 some Good to himself." ^ Since man naturally seeks only 
 his own satisfaction the original state of nature was a condi- 
 tion of war of every man against every other man. In this 
 state of affairs there was no law and no morality. " The de- 
 sires and other passions of man are in themselves no sin. 
 No more are the actions that proceed from those passions, 
 till they know a law that forbids them ; which till laws be 
 made they cannot know, nor can any law be made till they 
 have agreed upon the person that shall make it. . . . To 
 this war of every man against every man, this also is conse- 
 quent ; that nothing can be unjust. The notions of right 
 and wrong, justice and injustice, have there no place. Where 
 there is no common power, there is no law ; where no law, 
 
 I Hobbes, Leviathan^ p. 66. (I quote from Thornton's reprint, giving 
 the pages of the original edition of 165 1.) 
 
THE CONCEPT OF LAW IN ETHICS. 27 
 
 no injustice. Force and Fraud are in war the two cardinal 
 virtues. Justice and injustice are none of the faculties, nei- 
 ther of the body nor mind." ^ Reason, however, is no less 
 of the nature of man than passion, and since this is the same 
 in all men, directing them to seek their own good, there can 
 be no other law of nature than reason. Accordingly Hobbes 
 defines the law of nature as a ''precept, or general rule, 
 found out by reason, by which a man is forbidden to do that 
 which is destructive of his life, or taketh away the means of 
 preserving the same ; and to omit that by which he thinketh 
 it may be best preserved." ^ From this definition is deduced 
 the fundamental law of nature ^ to seek peace and follozv it, 
 and failing in this ' by all means we can to defend ourselves! 
 Such rights as being retained hinder the peace of mankind 
 ought to be given up, if we can be assured that others will 
 do the same. This gives us a second law of nature, and 
 from it follows the third, which is ' that men perform their 
 covenants made.' ^ The validity of the covenant depends 
 upon the assurance that it will be observed. ' Therefore be- 
 fore the names just and unjust can have place, there must 
 be some coercive power to compel men equally to the per- 
 formance of their covenants, by the terror of some punish- 
 ment greater than the benefit they expect by the breach of 
 their covenant ; . . . and such power there is none be- 
 fore the erection of a commonwealth.' Justice is the 'keep- 
 ing of covenant,' and, as this is a rule of reason by which 
 we are forbidden to do anything destructive to our life, it is 
 consequently a law of nature. 
 
 From these primary laws of nature Hobbes goes on to de- 
 duce a number of others ; in fact he makes nineteen in all, 
 but to * leave all men unexcusable, they have been contracted 
 into one easy sum, intelligible even to the meanest capacity ; 
 and that is, Do not that to another which thou wouldest 
 not have done to thyself.' ^ These laws are always binding 
 
 1 Ibid. pp. 62, 63. 
 
 2 Ibid. p. 64. 
 
 3 Ibid. p. 71. 
 
 4 Ibid. p. 79. 
 
28 THE CONCEPT OF LAW IN ETHICS. 
 
 on our desires and intentions, but we are under no obligation 
 to put them in act unless we have a reasonable assurance 
 that others will observe the same laws towards us. 'The 
 laws of nature are immutable and eternal,* for these are the 
 precepts of peace and ' it can never be that war shall pre- 
 serve life and peace destroy it.' i All of these precepts may 
 be termed indifferently laws of nature, as being the dictates 
 of natural reason, or moral laws * because they concern men's 
 manners and conversations one toward another,' or, again, di- 
 vine laws ' in respect of the author thereof, God Almighty.'2 
 The true doctrine of the laws of nature Hobbes declares to 
 be 'the true and only moral philosophy.' 
 
 In order that men may enjoy the blessings of peace as nat- 
 ural reason dictates, there must be a sovereign power capable 
 of enforcing obedience to compacts. The only way to erect 
 such a power is by mutual consent to confer the power and 
 strength of all upon one man or upon one assembly of men 
 that may reduce all their wills unto one will. In this way a 
 real unity of them all is established in one and the same per- 
 son. 3 ' The right of all sovereigns is derived originally from 
 the consent of every one of those that are to be governed ; 
 whether they that choose him do it for their common defence 
 against an enemy, as when they agree among themselves to 
 appoint a man or assembly of men to protect them ; or 
 whether they do it to save their lives by submission to a con- 
 quering enemy.' * After the sovereign power is once estab- 
 lished it is the duty of every one to yield implicit obedience 
 to it in all matters. The sovereign is under obligation only 
 to God and the laws of nature. The civil laws which he in- 
 stitutes are to determine without question the conduct of the 
 subject. They are to him the ultimate standard of right and 
 wrong, good and evil. * By the law of nature the civil sov- 
 
 I Besides these laws of nature which dictate peace and are necessary to 
 the existence of civil society, whatever tends ' to the destruction of par- 
 ticular men as drunkenness and all other parts of intemperance,' Hobbes 
 regards as forbidden by the law of nature. 
 — 2 Hobbes, Elements of Law, Pt. I, Chap. i8. 
 
 3 Leviathan, p. 87. 
 
 4 Ibid. p. 314. 
 
THE CONCEPT OF LAW IN ETHICS. 29 
 
 ereign in every commonwealth is the head, the source, the 
 root, and the sun from which all jurisdiction is derived ' ^ — 
 ecclesiastical as well as political. It is heresy for a private 
 person to maintain any doctrine prohibited by the state.^ 
 Thus while the laws of nature served Hobbes as the theoret- 
 ical basis of the state, the criterion of morality for the indi- 
 vidual, according to his doctrine, is the positive civil law. To 
 obey the laws of the state is the whole duty of man, ethical 
 and religious. 
 
 In a double way, therefore, the ethics of Hobbes takes on 
 a jural aspect in its fundamental theory, being based on the 
 laws of nature, and in its practical outcome referring all de- 
 terminations of duty to the civil law. The jural elements in 
 this theory are widely different from the divine commands 
 of Paley's system or the categorical imperative of Kant's. 
 In fact the laws of nature are for Hobbes's jural only in the 
 mode of expression and not at all in the concept itself. The 
 phrase ' law of nature ' was one held in high respect by jurists, 
 ecclesiastics, and rationalists. It was, therefore, a very ad- 
 vantageous phrase for the founder of a new theory of the 
 state to have continually in his mouth. Hobbes himself is 
 careful to state that he does not in reality attach any jural 
 significance to the term. At the end of the two chapters* 
 of the Leviathan, which he devotes particularly to the defini- 
 tion and deduction of the natural laws, he says : 
 
 " These dictates of reason men use to call by the name of 
 laws, but improperly, for they are but conclusions, or theo- 
 rems concerning what conduceth to the conversation and de- 
 fense of themselves ; whereas law properly is the word of 
 him that by right hath command over others. But yet if we 
 consider the same theorems as delivered in the Word of God, 
 that by right commandeth all things, then are they properly 
 called laws."** The reference of the laws to God serves 
 simply to explain the term, and perhaps is intended also to 
 
 1 Ibid. p. 312. 
 
 2 Ibid. p. 317. 
 
 3 XIV. and XV. 
 
 4 Ibid. p. 80. y 
 
30 THE CONCEPT OF LAW IN ETHICS. 
 
 conciliate religious sentiments, but it is quite outside the 
 line of argument of the theory itself. 
 
 § II. Such a system as that of Hobbes's *in which the 
 only fixed positions were selfishness everywhere and un- 
 limited power somewhere' could but excite the strongest 
 opposition from the moral sense and liberty loving spirit of 
 the English people. While the absoluteness of the sovereign 
 power offended the liberals in politics, the making of self- 
 regarding motives the only determinants of conduct and the 
 civil law the standard of good and evil aroused the antago- 
 nism of moral philosophers. Each of these three points, the 
 absolutism of the state, the egoism and relativism of morality 
 called out answers from moralists. Locke championed the 
 natural rights of the individual citizen, Cumberland main- 
 tained that the common good of all is the supreme end and 
 standard of conduct, and Cudworth taught that moral prin- 
 cipals are eternal and immutable. 
 
 In the writings of Cudworth, who was the foremost of the 
 Cambridge Platonists, we find a noteworthy opposition to 
 jural conceptions of morality. In his view neither civil law 
 nor divine law can determine morality. Good and evil are 
 essentially and eternally distinct, and no mere will, not even 
 that of God Himself, can alter this distinction. Surely the 
 transitory and changeable laws of the state cannot be the 
 source of that which in its nature is eternal and unchange- 
 able. Moral truths are immutable ideas of the divine reason 
 and, like the truths of mathematics, are apprehended by the 
 human reason, and are, therefore, equally valid for all ra- 
 tional beings. In the ethics of Locke and Cumberland, how- 
 ever, we find the jural concepts again regnant. Both of these 
 philosophers treated morality as a code of laws promulgated 
 by God, revealed in the natural reason and sanctioned by 
 rewards and punishments. ''Moral good and evil," says 
 Locke, " is only the conformity or disagreement of our volun- 
 tary actions to some law, whereby good and evil is drawn on 
 us by the will and power of the law-maker; which good 
 and evil, pleasure or pain, attending our observance or 
 breach of the law, by the decree of the law-maker, is that 
 
THE CONCEPT OF LAW IN ETHICS. 3 1 
 
 we call reward and punishment. "1 These sanctions are in- 
 sisted upon by Locke as absolutely essential to morality. It 
 is only * by rewards and punishments that will overbalance the 
 satisfaction any one shall propose to himself in the breach 
 of the law,' that moral laws have the power to curb and re- 
 strain inordinate desires.^ Locke distinguished three classes 
 of laws : (i) divine laws, (2) civil laws, (3) laws of opinion or 
 reputation. Virtue and vice in general are the names given 
 to such actions as receive the approval or disapproval of 
 public opinion, but when these names ' stand for actions in 
 their own nature right and wrong,' then they are * coincident 
 with the divine^ law.'^ The moral laws are not innate in 
 the human inind, but they are 'knowable by the light of 
 nature,' and it is, therefore, 'our own fault if we come not 
 to a certain knowledge of them.'^ For Locke, as for all the 
 philosophers of the 17th century, mathematics was the 
 ideal science, and mathematical demonstration the type of 
 certainty. Moral truths he believed to be equally necessary 
 and capable of demonstration, though on account of their 
 complexity and the impossibility of presenting them to the 
 eye by diagrams, their demonstration is more difficult.^ 
 
 Cumberland^ like Locke regarded morality as a code of 
 laws and as capable of demonstration as mathematics. The 
 only respect in which he is of distinctive interest in this 
 connection is his presentation of the general welfare as the 
 fundamental law of nature and its essential agreement with 
 individual interest, in this attacking the universal selfishness 
 of Hobbes's system. A law of nature in his view is " a 
 proposition proposed to the observation of or impressed upon 
 the mind with sufficient clearness by the nature of things, 
 from the will of the first cause, which points out that pos- 
 sible action of a rational agent which will chiefly promote 
 
 1 Locke, Essay concerning Human Understanding, Bk. II., Ch. 28, § 5. 
 
 2 Ibid. Bk. I., Ch. 3, § 13. 
 
 3 Ibid. Bk. IL, Ch. 28, § 10. 
 
 4 Ibid. Bk. I., Ch. 3, § I. 
 
 ^ 5 Ibid. Bk. IV., Ch. 3, § 18, 19. 
 
 6 His chief work, De Legibus Naturae (1672) shows him to have been 
 greatly influenced by Grotius. 
 
32 THE CONCEPT OF LAW IN ETHICS. 
 
 the common good, and by which only the entire happiness 
 of particular persons can be obtained." " The greatest be- 
 nevolence of every rational agent towards all forms the hap- 
 piest state of every and of all the benevolent, as far as in 
 their power ; and it is necessarily requisite to the happiness 
 which they can attain, and therefore the common good is 
 the supreme law."i As Hobbes is the founder of egoistic 
 hedonism in English ethics, so Cumberland is the founder 
 of universalistic hedonism. 
 
 The law of God which formed the ultimate authority in 
 morals for Locke and Cumberland was considered as know- 
 able by natural reason and is thus to be distinguished from 
 the divine law of the Hebrews and mediaeval moralists. 
 This distinction might be expressed by calling the ethics of 
 former theologic juralism, the latter Hebraic juralism. 
 
 § 12. The most thorough going presentation of theologic 
 juralism in moral philosophy, the culmination of the ethical 
 theories of 'natural theology' as taught in the 17th and 
 1 8th centuries is found in the system of Paley. With him 
 the law of God is no mere incidental factor or theoretic 
 basis, but the moving principle of the whole system. The 
 moral law is conceived in complete analogy with civil law. 
 It is the express command of a lawgiver who has the 
 authority and power to enforce his will by rewards and pun- 
 ishments. To be obliged is to be * urged by a violent motive 
 resulting from the command of another,' and just as we should 
 not be obliged to obey the civil law except for the rewards 
 and punishments, the pleasures and pains dependent upon our 
 obedience, *so neither should we without the same reason, be 
 obliged to do what is right, to practice virtue, or to obey the 
 commands of God. '2 Between prudence and duty 'the dif- 
 ference and the only difference' is that *in the one case we 
 consider what we shall gain or lose in the present world, in 
 the other case we consider also what we shall gain or lose 
 in the world to come.'^ 
 
 1 Quoted from Porter's appendixto the translation of Uberweg's History 
 of Philosophy, Vol. II., p. 362. 
 
 2 VzXty , Principles of Moral and Political Philosophy ^ Bk. II., Ch. 2. 
 3lbid. Bk. II., Ch. 3. 
 
THE CONCEPT OF LAW IN ETHICS. 33 
 
 Not only are the moral motives, according to Paley, of a 
 purely utilitarian nature, but the moral law itself is to be dis- 
 covered by the same principle. To learn this law we need 
 only inquire what is the will of God, for moral obligation de- 
 pends upon God's will and right signifies consistency with 
 this same will.i Since now the predominant tendency of the 
 contrivance indicates the disposition of the designer, we may 
 conclude that God wills and wishes the happiness of his 
 creatures. In order, therefore, by the light of nature to 
 come at the will of God concerning any action, it is only 
 necessary for us to inquire into the tendency of this action 
 *to promote or diminish the general happiness.'^ Paley's 
 whole theory, both in its jural and in its utilitarian aspects, 
 is summed up concisely and completely in his definition of vir- 
 tue : " The doing good to mankind, in obedience to the 
 will of God, and for the sake of everlasting happiness."^ 
 
 In the ethical systems thus far considered we have found 
 the law of nature, the law of God in two forms, and the law 
 of the state playing a more or less prominent part. Natural 
 juralism, Hebraic juralism, theologic juralism and civil ju- 
 ralism have one element in common ; they all involve the 
 notion of a lawgiver apart from man who imposes laws upon 
 him. These systems, therefore, may all be designated as 
 heteronomoiis . We have now to consider a system which in 
 this respect stands out in signal contrast to all of the fore- 
 going, a system which finds the moral law in the man him- 
 self and which in distinction from the rest we may call au- 
 tonomus. The claim of Kant to be the Copernicus of spec- 
 ulative philosophy may be also admitted in the field of prac- 
 tical philosophy. Just as he found that space and time and 
 the laws of the physical world are not given to us from with- 
 out but are imposed by us upon the world of phenomena, so he 
 showed that the moral laws are not given to us by God or 
 the state, but every man by virtue of his own rational nature 
 imposes these laws upon himself. 
 
 1 Ibid. Bk. II., Ch. 9. 
 
 2 Ibid. Bk. II., Ch. 4, 5. 
 
 3 Ibid. Bk. I., Ch. 7. 
 
34 THE CONCEPT OF LAW IN ETHICS. 
 
 § 13. In the same year (1785) in which Paley's Moral 
 Philosophy appeared, Kant published the first of his great 
 ethical works, Grundlegung zur Metaphysik der Sitten. The 
 contrast between these two works is one of the most strik- 
 ing presented in the whole history of speculative philosophy. 
 Compare with Paley's definition of virtue, **the doing good 
 to mankind in obedience to the will of God and for the sake 
 of everlasting happiness," the statement of Kant that in or- 
 der for an action to be morally good ** it is not enough that 
 it conform to the moral law but it must be done for the sake 
 of the law."i 
 
 With Paley the source of the law is God, the end is human 
 good, the motive everlasting happiness ; with Kant the source 
 of the law is the pure reason, the end is not to be taken into 
 account at all, and the only moral motive is reverence for the 
 law its elf < 
 
 Had nature intended man for happiness only, instinct would 
 have been all sufficient, but reason has a higher purpose. Its 
 office is to produce a will that shall be good not only as a 
 means to something else, but good in itself. In fact nothing 
 in the world can be conceived as unconditionally good but 
 the Good Will.^ All other goods are but means only. The 
 good will is an end in itself and to the production of such a 
 will reason is absolutely necessary. The moral law must 
 have its seat in the pure reason. None of the peculiar cir- 
 cumstances of man's nature are to be taken into account lest 
 some empirical taint sully the a priori purity of the law. That 
 law only is truly moral which is valid for every rational be- 
 ing as such. Hence it is the pure reason alone apart from 
 all the interests of particular beings that can be the lawgiver. 
 Thus the law is imposed by each man upon himself and is at 
 the same time valid for all rational beings. Only such a law 
 can command the respect of men, and however they may fail 
 to obey it, they nevertheless instinctively reverence it. Were 
 the law conditioned by inclination or imposed by any power 
 
 1 From the preface to the Grundlegung zur Metaphysik der Sitten, 
 Abbott's translation of Kant's ethical works, p. 4. 
 
 2 Ibid. p. 9. 
 
THE CONCEPT OF LAW IN ETHICS. 35 
 
 outside of ourselves, obedience to it would produce only le- 
 gality and not morality. To be of moral worth an act must 
 be done from duty. Even though the effects of the action 
 be quite in accord with duty, it cannot be regarded as moral 
 unless it is done solely from duty or respect for the law. The 
 act done from duty possesses the same moral worth whether 
 its effects be useful or injurious. Particularly must the act 
 have no regard to inclinations. Indeed it is only in cases 
 where we act directly contrary to inclinations that we can be 
 perfectly sure that we are acting morally at all. If inclina- 
 nation and duty command the same act there will be a doubt 
 whether we do the act solely from duty, and it is only in so 
 far as done from duty alone that the act is worthy to be des- 
 ignated as moral. 
 
 Our knowledge of the moral law, the principles of the prac- 
 tical reason is obtained just like the knowledge of all rational 
 principles. " We become conscious of pure practical laws 
 just as we are conscious of pure theoretical principles, by at- 
 tending to the necessity with which reason prescribes them, 
 and to the Telimination of all empirical conditions." i "The 
 moral law is given as a fact of pure reason of which we are 
 a priori conscious, and which is apodictically certain, though 
 it be granted that in experience no example of its exact ful- 
 filment can be found." ^ "All moral conceptions have their 
 seat and origin completely a priori in the reason and that, 
 moreover, in the commonest reason just as truly as in that 
 which is in the highest degree speculative." 3 
 
 The formula for the rational principle which is to deter- 
 mine the will of an imperfect being is called an imperative. 
 If the imperative commands an action good only as a means 
 to something else, it is called a hypothetical imperative. If, 
 however, the action is conceived as good in itself and con- 
 sequently as being necessarily the principle of a will which 
 of itself conforms to reason, then it is categorical. Hypo- 
 
 1 Kritik der praktischen Vernunft, Bk. I., Ch. I, § VI., Abbott's trans- 
 lation, p. 1 18. 
 
 2 Ibid. p. 136. 
 
 3 Grundlzgung zur Metafhysik der Sitten, trans, p. 28. 
 
36 THE CONCEPT OF LAW IN ETHICS. 
 
 thetical imperatives are rules of skill or counsels of prudence; 
 only a categorical imperative can be a law of morality. Duty 
 as a practical, unconditional necessity of action must hold 
 good for all rational beings and so for all human wills. The 
 fundamental formula of the moral law, the categorical im- 
 perative is : "Act so that the maxim of thy will can always 
 
 V at the same time hold good as a principle of universal legis- 
 lation . " ^ or, in other words, make a law which you could 
 will to be universal the rule of your conduct. Since man 
 and generally any rational being exists as an end in himself, 
 not merely as a means to be arbitrarily used by this or that 
 will, a secondary form of the categorical imperative is : " So 
 act as to treat humanity, whether in thine own person or in 
 that of another, in every case as an end withal, never as 
 means only." 2 In renouncing all individual interests the 
 will becomes universally legislative and thus acquires for hu- 
 manity the highest possible dignity. The moral will is sub- 
 ject only to the laws of which it can regard itself as author. 
 "Looking back now," says Kant, "upon all previous at- 
 tempts to discover the principles of morality, we need not 
 wonder why they all failed. It was seen that man was bound 
 to law by duty, but it was not observed that the laws to which 
 he is subject are only those of his own giving, though at the 
 same time they are universal, and that he is only bound to 
 act in conformity with his own will ; a will, however, which 
 
 [^ is designed by nature to give universal laws." ^ 
 
 In the present century the tendency of ethics on the 
 whole has been away from the jural type. The phrase 
 'Moral Law ' however, has continued to occupy a prominent 
 place in ethical discussions. The popular conception of mo- 
 rality as the command of the deity, the long and honorable 
 history of the term in philosophy, the majesty of the civil 
 law, the appropriateness of the term to express the uncondi- 
 tioned necessity of moral duties — all of these circumstances 
 combine to keep the term in use even though it is regarded 
 
 1 Kritik der praJttischen Vernunft, Bk. I., Ch. I., § VII., trans, p. 119. 
 
 2 Grujidlegung zur Metaphysik der Sitten, trans, p. 47. 
 
 3 Ibid. p. 51. 
 
THE CONCEPT OF LAW IN ETHICS. 37 
 
 as only a metaphor. Perhaps, too, the respect for the word 
 law, arising from its use in the physical sciences, has made 
 moralists who retain little of the old jural sense of the term , 
 still cling to the word. ** Metaphors from law and metaphors 
 from war," says Bagehot, " make most of our current moral ^ 
 phrases, and a nice examination would easily explain that both 
 rather vitiate what both often illustrate." i The 'metaphors 
 from law,' however, will doubtless long continue to furnish 
 the most effective means for popular instruction in morals, 
 and if the different senses of the term be carefully distin- 
 guished perhaps no more useful term can be found for the 
 •ethical scientist. 
 
 I Bagehot, Physics and Politics^ p. 79. 
 
38 THE CONCEPT OF LAW IN ETHICS. 
 
 CHAPTER IV 
 
 The Moral Law. 
 
 § 14. In all the sciences of to-day the term law plays an 
 important part. While the one term is used with equal free- 
 dom in all, the corresponding concept takes on almost as 
 many different forms as there are different sciences. We 
 hear continually such expressions as laws of chemistry, laws 
 of motion, laws of logic, laws of poetry, laws of the state, 
 laws of etiquette, etc. Among all these various uses of the 
 term we may distinguish two typical forms of the concept : 
 (i) law in jurisprudence, (2) law in physics. The first is the 
 original form of the concept, the second a derived form. All 
 the other uses of the term are varieties of one or the other 
 of these fundamental species of the concept, or else more or 
 less confused combinations of the two. 
 
 "The term law," says Zeller, "in all languages meant 
 originally a rule of conduct established by some person, 
 whether human or divine, with regard to the conduct of men ; 
 a law is what the community requires or the deity com- 
 mands." ^ It is precisely in this same sense that we use the 
 term to-day in jurisprudence. Holland gives the definition : 
 "A law is a general rule of external human action enforced 
 by a sovereign political authority." 2 This form of the con- 
 cept involves three essential elements. To see these clearly 
 we may state the definition thus : a law is (i) a rule of con- 
 duct which (2) a will in authority imposes upon (3) a subject 
 will. 
 
 1 Zeller, Vortrage und Abhandlungen, j Satnm. p. i8g. 
 
 2 Holland, Elements of yurtsprudence, p. 37. 
 
THE CONCEPT OF LAW IN ETHICS. 39 
 
 (i) The essence of this first element, rule of conduct, is 
 uniformity in action. Without prescribed rules one man may 
 act in one way, another in another, or the same man in differ- 
 ent ways at different times. Wherever uniformity is ob- 
 served in the conduct of men, it is abscribed to laws of some 
 kind, as the laws of the state, laws of custom, laws of na- 
 ture, etc. Thus the law is an expression of uniformity in ac- 
 tion. (2) This rule of action is always thought of as estab- 
 lished by some power in authority. Hence as a second el- 
 ement we must recognize the legislative will (3) The rule 
 of action is laid upon some person i. e.y upon a free will, who 
 may or may not conform to it. The freedom of the subject, 
 or Xho. possibility of non-conformity is always contemplated in 
 this sense of the term. This first typical form of the con- 
 cept involves, therefore, these three essential elements : uni- 
 formity in action, a legislative will, and freedom or the possi- 
 bility of non-conformity on the part of the subject. 
 
 As the Greeks became better acquainted with other na- 
 tions, especially after the conquests of Alexander, they found 
 many of the same rules of conduct in force among the bar- 
 barians as among themselves. These common norms and 
 customs, they saw, could not have been established by the 
 lawgiver of any one city or people. Common to all men, 
 they must have been established by a power having authority 
 over all men in common. The legislative will became now 
 Zeus, Nature or the divine creative Reason. In Sophocles, 
 as we have seen, the unwritten laws of the gods are clearly 
 distinguished from the written laws of human kings. Hera- 
 cleitus connected this divine law with the order of things in 
 nature. The Stoics were the first, however, to bring into 
 general use the term law as applied to the natural order of 
 things. They believed that the ultimate cause of the world 
 was not merely a material substance, but also a creative power 
 ^ and Reason. The natural order and necessity in the uni- 
 verse they explained as the expression of the will of that 
 Ultimate Reason. They used the phrase law of nature in- 
 differently for the order in the physical world and for the 
 principles of moral conduct. In the Stoic concept of law of 
 
40 THE CONCEPT OF LAW IN ETHICS. 
 
 nature as applied to the external world we find the element 
 of uniformity of action as in the first form, the legislative 
 will broadened into a universal Reason, but the third element 
 that of freedom, completely vanishes. In this case the law 
 is not imposed upon persons who may or may not obey, but 
 upon inert matter which always conforms to the law neces- 
 sarily. 
 
 The elimination of the second element converts the Stoic 
 concept into the modern scientific idea of natural law. The 
 legislative will as well as the possibility of non-conformity 
 has disappeared and we have left only the first element — ^uni- 
 formity in action. The metaphysical philosopher may still 
 resort to an ultimate rational will to explain the order in na- 
 ture, but the physicist as such uses the term law without any 
 implications of a lawgiver. To him the law is the expression 
 for the mode of action in things, not for something outside 
 of things. It is simply the statement of the fact of a cer- 
 tain uniformity in nature. The general form of a law in 
 physics is : under certain conditions, certain events always 
 happen. This unexceptional validity of the physical law is 
 its characteristic mark. Of the three essential elements" 
 in the jural sense of the term we find only one in the 
 physical law, viz., uniformity in action. 
 
 What now is the relation of the concept moral law to 
 these two typical forms of law } 
 y The moral laws are those rules of conduct which we feel 
 ourselves under obligation to obey. Briefly put, the moral 
 law is the code of dutiesy In this general formal definition 
 all moralists would agtee, I think. It is in regard to the 
 source, end, scope, and content of the code of duties that 
 the schools differ. According to the Hebraic or the theo- 
 /^logical conception of morality these norms of conduct are 
 / laid upon man by the divine lawgiver. In this case the 
 moral law is of precisely the same type as civil law. a The 
 three elements of this type are all present — the.^prescribed 
 ^uniformity of con'duct, the legislative will, and the subject 
 will.i Or, if with Hobbes we regard the state, or, with cer- 
 tain recent writers, society or humanity as the source of the 
 
THE CONCEPT OF LAW IN ETHICS. 4 1 
 
 law, we find the same essential agreement with the jural 
 form of the concept. 
 
 But, as Kant has so well shown, any command which is 
 put upon us by an external will can have of itself only the 
 force of legality. It acquires the force of morality, obedi- 
 dience to it became a duty and not merely a matter of pru- 
 dence, only as we bind it upon ourselves and it is brought 
 by self under the feeling of obligation. (No imperatives of 
 parents, the state, or even of divine revelation, could com- 
 mand anything but a prudential, legal conformity, unless 
 at the samejimeth£ya£pe^^^^^ 
 
 Such externally imposed imperatives may well be the ratio 
 cognoscendi ; but never of themselves the ratio essendi of the 
 moral law. *'It is the very essence of moral duty to be im- 
 posed by a man upon himself. . . . What we primarily 
 understand by 'law' is some sort of command given by a 
 superior in power to one whom he is able to punish for 
 disobedience ; whereas it is the essence of moral * law ' that 
 it is a rule which a man imposes on himself, and from another 
 motive than the fear of punishment. . . . The spirit of 
 man sets before him the ideal of a perfect life, and pro- 
 nounces obedience to the positive law to be necessary to its 
 realization."^ Thus in rnorality the legislative will is one 
 with the subject will. But the concept of law still remains 
 of the same general type. We still have the three elements 
 of law as in jurisprudence. 
 
 While the term law in ethics is generally used as above 
 described in the jural sense, we should not forget the exist- 
 ence of laws in the physical sense. In moral phenomena 
 we find certain uniformities of sequence as well as in physi- 
 cal phenomena. Conduct and character are causally related, 
 and their relation it would seem possible to express by gen- 
 eral formulas, i. e., by laws. The general form of such a 
 natural law of ethics is : such and such conduct produces such 
 and such states of consciousness and such and such charac- 
 ter. Selfishness brings unhappiness — violation of duty is 
 followed by stings of conscience — lying degrades character ; 
 
 I T. H. Green, Pf^egomena to Ethics, p. 354. 
 
42 THE CONCEPT OF LAW IN ETHICS. 
 
 these are examples of laws in the moral sphere in just the 
 same sense and of just the same validity and necessity as 
 the facts that ice melts at 32 degrees and that a falling body 
 increases in velocity as the square of the distance. Spencer 
 says : ** I conceive it to be the business of Moral Science 
 to deduce from the laws of life and the conditions of existence 
 what kinds of action necessarily tend to produce happiness, 
 and what kinds to produce unhappiness. Having done this, 
 its deductions are to be recognized as laws of conduct."^ 
 Now without making this the whole business of ethics, it is 
 certainly a part of its work to discover the 'laws of conduct/ 
 We may not believe as Mr. Spencer seems to, that these 
 laws can be deduced from biology. We may have to dis- 
 cover them empirically rather than deductively. We may, 
 too, be more interested to know what sort of conduct makes 
 for perfection of character or for the * health of the social 
 tissue,' but at any rate besides investigating ends and 
 motives ethics must formulate the laws of conduct by which 
 these ends if chosen may be attained. In logic and aesthet- 
 ics, and indeed in all the practical sciences, we find this 
 same double use of the term law. The laws of logic as state- 
 ments of the mind's procedure in thinking are necessary se- 
 quences of the same type as physical laws. But when from 
 these laws of thought we form rules of argument we have 
 imperatives which we bind upon ourselves in view of certain 
 ends, i. e., laws in the jural sense of the concept. So, too, 
 in aesthetics from the principles of beauty we derive rules of 
 art, and use the term law indiscriminately for both the prin- 
 ciples and the rules. Since these two widely different con- 
 cepts are both expressed by the one term law, and since we 
 have laws of both types in morals, ethical writers have often 
 confused them. Where the context does not make the 
 meaning of the word perfectly clear, ambiguity might be 
 avoided by the use of imperatives for one sense and uniformi- 
 ties for the other. 
 
 § 15. On the basis of this analysis of the concept of law 
 
 I Spencer, Data of Ethics, p. 57. 
 
THE CONCEPT OF LAW IN ETHICS. 43 
 
 in ethics, we will make a brief examination of the source, 
 ends, and motives of the moral law. 
 
 In one sense of the term the moral laws as psychical uni- 
 formities are constitutive principles of man's being, a part of 
 his very nature. To ask for their source could have no 
 other meaning than to ask the source of the man himself. 
 The origin of the moral principles of man's nature demands 
 no special explanation apart from that of the intellectual or 
 any other class of powers of the human spirit. To explain 
 the origin of the moral consciousness would seem to involve 
 essentially the same difficulties to the evolutionist, neither 
 less nor more, than to explain the origin of the intellectual 
 consciousness, and should an evolutionary origin be accepted 
 it can no more invalidate the duties of the former than the 
 truths of the latter. 
 
 The fundamental source of the moral imperatives is these 
 constitutive principles of man's moral nature. They are not 
 given to him from without but are the expression of the 
 character of his inmost being. Not in these principles taken 
 absolutely, however, is the source of imperatives to be sought, 
 but in them as related to the whole man, and the man too 
 as related to society and the universe in general. Man is to 
 live and develop the capacities of the nature which he has 
 and in the relations in which he finds himself. Morality is 
 a certain function of the relation which the individual self 
 sustains to the world. This might be expressed in a quasi 
 mathematical formula as follows : 
 
 This is indeed a highly complicated ratio, for the S, the indi- 
 vidual, is both physical and spiritual in his nature, and in the 
 W is included not only the physical world but the animal 
 kingdom, society and the invisible, eternal, spiritual reality 
 of things. The due adjustment of this complex ratio, as far 
 as it lies within our power, is the problem of moral conduct. 
 The moral law is the code of rules derived from the study of 
 this relationship and imposed upon the individual by his own 
 sense of duty. 
 
44 THE CONCEPT OF LAW IN ETHICS. 
 
 By far the largest and most important part of this prob- 
 lem, the part most fully in our own power, consists in the 
 adjustment of the individual to society. The historical de- 
 velopment of this adjustment has furnished us with the 
 greater part of our present moral code. Lawgivers and 
 moral reformers have doubtless had .a large influence upon 
 the evolution of moral norms. But the continual interaction 
 of man upon man and the attitude of rulers and the state 
 toward the individual, in short society has been the control- 
 ing element in establishing the moral laws that are generally 
 recognized. ^Our actual code of morals has not been given 
 by revelation, discovered by intuition, or deduced by a con- 
 scious study of man's relation to the world, but it is the 
 product of the historical interaction of individuals and so- 
 ciety upon one another. Had man not come into social re- 
 lations the sense of duty would probably have lain dormant 
 in the human breast. It is society that has actualized and 
 brought to light the latent morality of mankind. In man's 
 moral nature as developed by society, therefore, we find the 
 source of the moral law.J 'Nor is the law any the less binding 
 because it is the product of evolution. As has often been 
 remarked, to explain the origin of a thing is not to explain it 
 away. The keenest analysis leaves the sense of duty, the 
 feeling of obligation, as an ultimate, irreducable fact. Such 
 being the case we must admit that the moral imperatives 
 are at bottom not hypothetical but categorical in fonn. But 
 while we find Kant and the intuitionists right as to the form 
 of the law, the empiricists are, equally right as to the con- 
 tent. Men of moral sanity feel within themselves the cate- 
 gorical imperative to do duty, or, stated one degree less ab- 
 stractly, to will the good. But as to what is duty, or what is 
 the good to be willed, only experience can tell us. 
 
 § 1 6. Accepting the command — Will the good — as the 
 simplest and most comprehensive statement of the moral 
 law, we must at once raise the questions, Whose good and 
 which good .'' The end of the moral law must accordingly 
 be examined from these two standpoints : What are the 
 
THE CONCEPT OF LAW IN ETHICS. 45 
 
 goods aimed at and who are to receive these goods? We 
 will consider the latter question first. 
 
 Good is a relative term and has no meaning apart from 
 some sentient being who is to experience it. Who, then, is 
 the sentient being whose good is aimed at by the moral law ? 
 Or, to use a German phrase, who is the end-subject {zweck- 
 subject) of morality } There are three possible answers to 
 this question, animals, men, God. We cannot admit the last 
 as a proper end-subject of our morality. Accepting the full- 
 est theistic conception of God, we cannot suppose him to be 
 wanting in anything which our acts can supply. Regarding 
 him as the lawgiver and as most sympathetically interested in 
 us as his children, still he is not the end-subject of our conduct. 
 In saying this we would not be understood as in any degree be- 
 littling the importance of religious duties. These duties are 
 a part of the objective end of the moral law, but they are 
 due to society and to ourselves as spiritual beings, rather 
 than to God as their end-subject. We take the medicine that 
 the physician prescribes not for his sake, but for the sake of 
 our own health. 
 
 Are animals end-subjects of our moral acts.? Yes, in so 
 far as they are susceptible to weal at our hands. Modern ab- 
 horrence of cruelty to animals may be explained by the be- 
 lief that one who is cruel to dogs and horses will also be 
 cruel to men in his power. Were it not, however, that the 
 horse is sentient and therefore so far deserving of our sym- 
 pathy, beating his horse would not beget cruelty in his 
 driver. We may justly fear that the boy who has no regard 
 for the pains of the pony he rides will grow up devoid of sym- 
 pathy for the sufferings of his fellow men. However hard 
 the boy may lash his whip about a post, we do not think 
 that he is thereby acquiring the habit of cruelty. The pony 
 is sentient and the post is not. The boy who beats his pony 
 is acquiring the habit of cruelty because he is violating the 
 duty to further the good of sentient beings. The degree to 
 which any being is susceptible to weal at our hands deter- 
 mines the extent of our duty to it. The father of a family 
 has not the same duty to the babe in arms as to the son of 
 
4^ THE CONCEPT OF LAW IN ETHICS. 
 
 ten or to the daughter of twenty. In the case of the lower 
 animals our duty is of course very small. A proper satisfac- 
 tion of their physical needs, infliction of no unnecessary pain, 
 and in the case of certain of the finest breeds of domestic 
 animals a gentleness and kindliness of tone in their pres- 
 ence, make up perhaps the sum total of our duties to ani- 
 mals. A recognition of duties to animals in so far as they 
 are susceptible to weal does not, as Ihering, for example, 
 maintains, preclude the slaughter of animals for food or vivi- 
 section in the cause of science. We do not hesitate to justify 
 the infliction of pain on our own bodies for a greater good. 
 If life or health demand it, we suffer any surgical operation, 
 however painful, and for the greater good to man we are 
 justified in inflicting pain upon and taking the lives of lower 
 animals. 
 
 While we thus regard animals as true end-subjects of our 
 duties as far as they are susceptible to weal at our hands, 
 still this forms scarcely more than an infinitesimal part of the 
 demands of the moral law. The proper end-subject of the 
 great mass of our moral acts is man. In this connection we 
 may view man in three ways — self, other in'Hividuals, and so- 
 ciety as an organized unit. Which of these, or in what re- 
 spect is each of these a true end-subject of the moral law } 
 
 Since duty commands man to will the good and he is him- 
 self susceptible to weal, his own good must surely fall under 
 the imperatives of the law. He is thus himself a true end- 
 subject of his own moral conduct. As a large part of the 
 needs of the individual are provided for by his egoistic im- 
 pulses, comparatively little is left to the moral law or con- 
 scious feeling of duty. Yet this little is of the highest im- 
 portance. It is the sense of duty to self which commands 
 us often in spite of all egoistic impulses and inclinations, to 
 seek the highest good, the lasting or the spiritual good, in 
 place of the lower, temporary, or sensuous goods. It is self- 
 respect which enforces the duty of the present self to the 
 future self and of the lower self to the higher self. The 
 sublimity of the moral law and the dignity of character are 
 manifested quite as clearly in the victory of the higher over 
 
THE CONCEPT OF LAW IN ETHICS. 47 
 
 the lower nature in cases concerning the individual himself 
 alone as in the more public examples of the sacrifice of self 
 to the good of others. Our own immediate susceptibility to 
 the higher forms of good is a sufficient justification of duties 
 to ourselves. It seems a forced, circuitous, and altogether 
 superfluous explanation to ground such duties on our rela- 
 tion to society. 
 
 Bearing in mind our criterion of susceptibility to weal 
 and the fact that the egoistic impulses are generally pressing 
 us on with a much greater intensity than the sympathetic, 
 we find accordingly the principal end of morality in the wel- 
 fare of our fellow men. The great majority of our moral im- 
 peratives have others as end-subjects. So overwhelmingly 
 large is this portion of the ethical code that it is often 
 thought to include the entire content of the moral law. But 
 as we have already seen, it would seem necessary to reserve 
 to self and even to the lower animals some place within the 
 sacred precincts of Duty's temple. 
 
 Now are our duties to others due to them as individuals 
 or as members of society ? Only a being who is susceptible 
 to weal, who has the knowledge of good and evil, only a con- 
 sciousness can be of intrinsic moral worth or be an end -sub- 
 ject of the moral law. The social organism is not a sentient 
 being, a consciousness. It is only its members that possess 
 real consciousness. Society is an interrelated, interacting 
 aggregate of individuals. As far as they have common aims 
 and purposes, they can seek them through society as an 
 organized body. But when we apply the term organism to 
 society we must recognize the essential difference between 
 the social organism and the organism of the human body. 
 Society is susceptible to weal only in its members ; the hu- 
 man body not in its members but only as a whole. In the 
 one case the whole is a means, the members the end ; in the 
 other the members are the means and the whole is the end. 
 The individual consciousness is the only real human conscious- 
 ness of which we have any knowledge. Such an expression as 
 the national consciousness may be highly useful as a figure of 
 speech. The personification of the nation or of society is con- 
 
48 THE CONCEPT OF LAW IN ETHICS. 
 
 venient in discourse. But we must not be misled by such a 
 figure into supposing that the nation is a person with feel- 
 ings, intellect, and will. It is only individuals, after all, who 
 have feelings, who are susceptible to weal. Only where 
 there is an autocrat who arrogates to himself to be the state 
 could there be any meaning in calling the state an end-sub- 
 ject. 
 
 Individualism has erred in regarding the single man in a 
 'state of nature ' as complete in himself. Apart from latent 
 social capacities and needs such a being would be only an 
 animal and not worthy of the name man at all. Indeed the 
 lone individual is only an abstraction ; we know men only 
 in society. Man as man is a social being, ^cooy TzoXixixbv, 
 as Aristotle long ago taught. It is only in interrelation with 
 his fellows that the distinctively human qualities are capable 
 of development at all. Man is not possessed of innumerable 
 rights in a state of nature which he agrees willingly or un- 
 willingly to abrogate in order to enjoy certain social advan- 
 tages. It is only in society that he acquires any 'rights' or 
 rises to a place of moral worth. Powers and capacities latent 
 in the natural or isolated man, were there any such, are 
 actualized in society. To live is to be in interactive rela- 
 tions, — the broader and deeper the relations the broader 
 and deeper the life. For self-realization or living the com- 
 pletest possible life society is intrinsically necessary. This 
 is the truth that has led Wundt and Ihering, conscious of 
 the defects of the old individualism, to make society the end 
 and aim of all morality. Society is not the end-subject. 
 The individual is the only possible end-subject. But society 
 is the absolutely indespensible means for this end. Man is 
 in his very nature a social being. His welfare can be wrought 
 out only in company with his fellow men. But ultimately, 
 after recognizing to the full the unique and indispensable 
 value of society to mankind, we must say that society exists 
 for man and not man for society. Society is the means, in- 
 dividuals are ends. Only persons susceptible to weal and 
 capable of character possess intrinsic moral worth. 
 
 The discussion of the ends of the moral law, as already 
 
THE CONCEPT OF LAW IN ETHICS. 49 
 
 stated, involves not only the question whose good, but also 
 what goods. Besides the end-subjects of , the law we must 
 consider the objective ends of the law. These objective 
 ends must correspond to the nature of the end-subjects. In 
 order to determine the content of our duties to self and to 
 others, we have only to inquire : What are the kinds of 
 goods to which man is susceptible ? What are the needs of 
 our nature whose satisfaction is necessary that we may at- 
 tain to the full perfection of our manhood } These needs 
 may be summed up under four general classes : physical, in- 
 tellectual, aesthetic, and religious. History has already de- 
 veloped for us the formulas and institutions by which we can 
 attain to an approximate satisfaction of these wants. Our 
 primary duty therefore is to obey the moral code and further 
 the institutions established by society. Since this code and 
 these institutions are the product of evolution, we may trust 
 that they will be subject to a still higher development in the 
 future. An important secondary duty, accordingly, is to 
 aid in this development. 
 
 § 17. After what has already been said of the nature and 
 ends of the moral law, little need be added about the motive. 
 For a rational being ends and motives must correspond. 
 We intuitively recognize that the good is worthy to be 
 chosen and that we ought to choose it. This deepest of all 
 realities of our nature, the feeling of moral obligation, is the 
 ultimate motive. This imperative within us calling upon us 
 to choose the good of others before our own, is for the 
 most part justified by our peculiar dependence upon the so- 
 ciety of others. That the imperative sometimes overrides 
 the will to live and demands the sacrifice of life itself to 
 others is indeed a moral antinomy. Only the postulate of a 
 future life, in which the individual may continue his self- 
 realization in the society of those other selves whose realiza- 
 tion he has aided, seems to offer any solution. That our 
 moral nature should demand of us an absolute self-sacrifice 
 seems impossible to believe. 
 
50 THE CONCEPT OF LAW IN ETHICS. 
 
 BIBLIOGRAPHY. 
 
 Alexander, Moral Order and Progress. 
 
 Andrews, Institutes of General History ; The Social Body 
 
 (in Andover Review, October, 1890). 
 
 Aquinas, Sunima Theologica. 
 
 Aristotle, Ethics ; Rhetoric. 
 
 Bagehot, Physics and Politics. 
 
 De Coulanges, The Ancient City. 
 
 Erdmann, History of Philosophy. 
 
 Eucken, The Fundamental Concepts of Modern Philosophic 
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 Green, Prolegomena to Ethics. 
 
 Grote, History of Greece. 
 
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 Paley, Principles of Moral and Political Philosophy. 
 
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 Riimelin, Reden und Aufsdtze : ueber Gesetze der Geschichte^ 
 Eine Defenition des Rechts. 
 
 Schmidt, Die Ethik der Alten Griechen. 
 
THE CONCEPT OF LAW IN ETHICS. 5 1 
 
 Schurman, Kantian Ethics and the Ethics of Evolution ; The 
 
 Ethical Import of Darwinism. 
 Sidgwick, Methods of Ethics ; History of Ethics. 
 Stephen, Science of Ethics. 
 Spencer, Data of Ethics'. 
 Sophocles, Antigone, 
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 Zeller, Vortrdge und Abhandugen, 3 Samml. ueber Begriff 
 
 and Begriindung der Sittlichen Gesetze ; History of Greek 
 
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