Parergon: On the Relation of Juridical Discipline to Moral Discipline

1. We have distinguished juridical discipline from moral discipline; yet we do not want them so separated that we proclaim the jurist released from moral consideration.

But in non-Catholic schools today there are not lacking supporters of a divorce of this kind, which conceives the province assigned to the jurist in approximately this way.

2. To the science of law there are offered for investigation the norms by which the exterior action of men in the society about which the discussion is being made is coercively directed. By these rules the life of the people is in fact imbued, so that their force and efficacy can be measured.

What then will the science of law do? It will try to reduce all the rules concerning individual objects to some synthetic unity, so that by this effort it may arrive at a certain abstract definition which virtually contains the various rules, and from which, consequently, they can be deduced. Thus there will be composed, for example, the abstract notion of the State, of the Family, of Property, such as can be defined in our age in Italy, in France, in Germany, in Europe.

This is the proper work of the jurist. He ignores metaphysical norms as such; he attends only to the vigor which public opinion attributes to them. But positive institutions he judges according to their proportion to the prevailing opinion: he will approve those which agree with it, he will disapprove those which differ from it.

Today all will readily acknowledge that those institutions are mutable and perfectible. Indeed, they think the same institutions are in perpetual motion. But their greater perfection is not to be gathered from some absolute norm to which they become more conformable, but from the fact that they participate in the inclination and tendencies of opinion itself.

Thus institutions which are an image of the prevailing opinion will be proclaimed good by the jurist; but those will be called better which already sketch the image of the opinion soon to come.

Does there exist an absolute norm superior to positive law? Let the philosophers see to that. What is more fitting for such a people? Let politicians effect that. The jurist adheres to the consideration of facts alone.

Indeed, there were once some (rather than there are now) who with Marx denied all force and efficacy of moral persuasions upon juridical institutions. But this historical materialism is refuted by the most manifest facts of every age. It is enough to recall how much the matrimonial regime, for example, has been changed by Christianity.

3. Censure of that divorce. It is certainly in man's power to consider things precisively, and consequently to weigh the relation between institutions and the persuasions of men. And such precision, if it is made opportunely and prudently, can have its political and social utility.

But why the jurist must be content with that inadequate consideration in no way appears, nor is it demonstrated. Who, besides him, will refer the positive institutions of men to the divinely established order theoretically and practically? Since the metaphysical philosopher, occupied with abstract things, is ignorant of positive institutions as such, if the jurist observes only the relation of facts, no comparison with absolute norms will be made, no effort will be made to attain them practically, and that which is at once the honor and the duty of man will be wholly neglected: namely, that in his private and public action he imitate God.

In what way also will you deny to the jurist that, by the authority which he possesses, he should influence the very persuasions of the people, and thus fulfill his own part in procuring common happiness?

What of this, that from the natural law rules must be supplied for cases which were not foreseen by the human legislator? Moreover, common sense itself cries out that from the same law there are many things in human decrees to be condemned and corrected. By what title are reforms of laws demanded? That injustices may cease; that greater justice may reign. Therefore an absolute norm is invoked by all reformers, so that a certain ideal image of absolute good is set before the eyes of all. If that image were fallacious, if it were a dream without reality, we would be deceived by our very nature.

But he who, without respect to a superior law, proclaims good whatever is received among men, will often praise what is to be condemned, will blame what is to be praised, and thus will become a pernicious sower of error.

4. That a divorce of this kind, by which juridical matters are separated from moral matters, has been devised must be blamed on metaphysical skepticism and the present intellectual anarchy.

The province which, in such a system, is assigned to the expert in law could befit only beings which are subject to a fatal evolution. But it is opposed equally to human psychology and to objective truth. A role diminished and harmful to the common good would be imposed upon the jurist.

5. Therefore it is necessary that we hold these things firmly: every true progress is either required by absolute good, or is desirable according to that good. From meditation on that good there arises a greater hope of true progress. Opinion, however, and common persuasions are only imperfect criteria, in which alone we cannot trust.

Besides, we freely acknowledge this: moral persuasions alone do not avail for having or changing juridical institutions. The force also of economic utility is by no means to be denied. Not rarely it will stand in the way of the better good. And if it favors the moral matter, it is rather a removal of an obstacle than a positive element of progress. This formula can be given: progress is made according to the absolute good to which lower utility does not stand opposed.

But in bringing about the happy advancement of peoples and men, no Catholic will deny that supreme direction is in the hand of God Provident.

Concerning the province of the jurist and the various opinions which have been proposed about this matter, let the excellent work of Professor Francis Geny be consulted: Science et technique en droit prive positif, 3 vols., Paris, 1914-1915-1921.