The Law of Relativity in Ethics

The Law of Relativity in Ethics
Author(s): Harald Hoffding

Source: International Journal of Ethics, Vol. 1, No. 1 (Oct., 1890), pp. 30-62
Published by: The University of Chicago Press
Stable URL: http://www.jstor.org/stable/2375606 .
Accessed: 13/05/2014 18:37
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to
International Journal of Ethics.
http://www.jstor.org
This content downloaded from 193.104.110.108 on Tue, 13 May 2014 18:37:36 PM

All use subject to JSTOR Terms and Conditions
30
International-7ournalof Ethics.
formoral cultureappears to be the indispensablepositiveconditionof a new avatar of the religious spirit. A new moral
earnestness must precede the rise of larger religious ideals.
For the new religioussynthesis,which manylong for,will not
be a fabrication,
but a growth. It will not steal upon us as a
thiefin the night,or burstupon us as lightningfromthe sky,
but will come in time as a resultof the gradual moral evolution of modern society, as the expression of higher moral
aspirations,and a response to deeper moral needs.
FELIX
THE
LAW OF RELATIVITY
ADLER.
IN ETHICS,
I.
IT is the intentionof this essay to prove that the validityof
all the moral laws rests on definiterelations and conditions,
and that the law of relativity-thefundamentallaw of knowledge-therefore applies also in the sphere of ethics. It will
appear in the sequel that this view helps to bring out the
essentialpoints of the nature of ethical perceptionand moral
laws.
We will begin by inquiring in what sense and with what
justice we speak of moral laws at all. The term" law" is not
used here in the same sense as it is employed in naturalphilosophy,psychology,or sociology. For it is notthe business
of ethics to point out the rules which are the basis of actual
human desire and conduct, but those principles and ideals
which oughtto underliethem; the standard to which it must
submit. That meaningof the word " law," which may be employed in philosophical ethics, reminds one of the way the
word is used in positivelaw, in theological ethics,and in the
scienceofpositivemorality,-viz.,ofmannersand the principles
on which public opinion is founded. But philosophical ethics
is distinguishedfromthese sciences in that it is not dependent
on any external authority,natural or supernatural. On the

The Law of Relativityin Ethics.
3'
contrary,it attemptsto draw its principles and ideals out of

human nature itself,as we know it by experience. Some
have concluded,fromthe foregoing,thatit is unwarrantableto
speak of moral laws.
A law, accordingto JohnAustin,presupposestwo parties,one who formulatesit and the otherforwhom it is formulated;
and its bindingqualitylies in the factthat he who formulated
it has the power to maintain it by attaching pain to its inthe law, upheld by authority,
fringement.While, therefore,
of action, on account of particulardeeds
produces uniformity
being determinedby its express demands, the word may at
the same time mean a general rule illustratedin particular
cases. It is the latterpart of the conceptionof law, and only
that,which we have in mind when we speak of naturallaws.
We think,therefore,
of the regularsuccession of phenomena,
without findingit necessaryto conceive the regularityas an
effectof an authoritativewill. And even ifthe commonuse of
the termbe allowed, it is yet definitelydenied by Austin that
thisconceptionoflaw mayfindapplicationinthose rules ofconduct which the individualman establishesforhimselfand acknowledges. For here there is neithera natural law nor a
power above the individual that might maintain the law in
case of its being infringed. " For though he may fairlypurpose to inflicta pain himself,if his conduct shall depart
fromthe guide which he intendsit shall follow,the infliction
of his conditional pain depends upon his own will." * But
does therenot exist a psychological basis of the conception of
moral law which indicates the three elements to be foundin
Austin's strictdefinition? Those elementswere (i) a relation
betweena higherand a lower; (2) a general rule of action; (3)
the maintenanceof this general rule by the inflictionof pain
in cases of transgression.
There are in man different
feelings,each one characterized
by its special sensational and intellectualcontents. Among
of
these feelingsthere is one attached to the self-preservation
the individual,and there are other impulseswhich permitthe
* "Lectures on Jurisprudence,"
i. p. 214.

32
individualto enterinto thejoys and sorrowsof others. Every

feelingis also a motiveto action; consequentlyit is possible
thata motivewhich regardsthe comprehensiveorderof things
and the well-beingof a greater group should assert itselfin
the presence of anotherwhich is only determinedby the particular limited interestsof the individual. In such a case
therewill be somethingin the individualwhich reaches beyond himself,and which assigns to him a place as a particular
part of a greaterwhole. From which it followsthat the wellbeing of the aggregate may sometimesrequirethe sacrificeof
that which regard forthe well-beingof self may demand of a
single being. There will then result two unlike feelings in
the self-sameindividual; one, an impulse bound to the conception of a wider order of things; the other an impulse
attached to a narrowersphere. Here, then,we have the first
elementin the conception of law. No other relationexists,
as a matterof fact,even when the partythat formulatesthe
law is an external authority. For this authoritymust necessarily reveal itselfby raising a feeling,be it one of fear or
make itselfknown in this
reverence,and the law will therefore
case, too, by the relationof two feelings or impulses within
man. For him who can exterminatethe emotion of fearor
reverence,thelaw does notexist. It followsthatphilosophical
ethics applies that conceptionof law withthe same justice as
jurisprudence,theology, and positive morality. I do not
enterhere more closely into the question as to how this inner
contrastbetween a wider and a narrowerregard originates
within the sphere of emotion and impulse. Under the influenceof social lifethis contrasthas gradually developed in
man according to psychologicallaws.
In philosophicalethicswe shall meetwiththe thirdelement
in the conceptionof law as we have alreadymetwiththe first.
Austin believed that it depended only on the individual's
will as to whetherhe feltpain fromthe violation of the laws
springingout of his own nature. But ifthe moral law be only
the formulationof an impulse determinedby referenceto a
greaterwhole, it will not be able to experience resistanceand
contradictionfromother parts of the nature of individuals

33
withoutexcitinga moreor less severepain. When the impulse,

rebellingagainst the acknowledged moral law, cannotwholly
displace or eradicate the other impulses which led to its
recognition,there springs up an inner discord, which we
call bad conscience or repentance. And it does not depend
on the arbitrarychoice of the individual whether this pain
shall arise or not; it follows with psychological necessity
fromthe given conditions. That which is expressed in the
guiltyconscience and in repentanceis nothing accidental or
arbitrary,but an inevitable result under the actual circumstances,-as inevitable as the external punishment,when
the state is strong and clever,and quick to seize the transgressor of civil laws. The state is not always successfulin
capturingthe criminal. In the same way it may happen that
repentancedoes not appear when the impulse drivingone to
the acknowledgmentof a greaterwhole is extinguished,or
strongand vivid to
when the latterimpulse is not sufficiently
assert itselfagainst the contraryimpulse.
Finally, it is possible to show that the propertyof being a
universal rule is part of the moral law. In the idea of the
greaterwhole to which the individualfeelshimselfattachedthe family,the clan, the nation,humanity-he has a principle
fromwhich he is able to deduce universalrules as to his will
and conduct. If he does not want to contradicthimself,he is
obliged to judge the condition and the inclinationof his will
by the loftiestand most universal stand-pointhe knows of;
and this stand-pointis the thoughtof the great total of which
he feelshimselfto be a part. The particularrules followthen
withlogical necessityfromthis thought,ifonce acknowledged.
The science of ethics is only a developmentof that which is
implicitly contained in universal sympathy as gradually
developed in the human race.
the use of the conception of law in ethics has
If,therefore,
been proved justifiable,it followsfromthe evidence produced
thatthe universalprinciple,as well as the rules deduced fromit,
have value onlyin relationto,and underthecondition
of,a positive
psychologicalbasis. If menshould be foundin whom thisbasis
that they
could not be shown to exist,it would resulttherefrom
VOL. I.-No.

34
InternationalY7ournalof Ethics.
would not,and could not,acknowledgemorallaws. What position to take towards such individualsis a question which we
shall touch lateron. We onlymaintainherethatall morallaws
are solid only in relationto a positive psychological.,presupof ethics.*
position. This is thepsychologicalrelativity
I I.
to determinethe psychological basis
But it is not sufficient
and the correspondingethical principle. The circumstances
underwhich the rules deduced fromthe principle need to be
nay,
applied are so entangled and complex that it is difficult,
without
applied
be
might
which
impossible, to find rules
hesitancyin all special conditionsand circumstances.
The universallaw cannot foreseeall possible circumstances
in which a man might be forced to make a final resolution.
the moral law has in common with the legal
This difficulty
and theological law, as well as with the laws of positive morality. Life is too rich and manifoldto be forcedinto a cutand-dried system. The conditions pass into one anotherby
shades and colors. There are no sharp dividmany different
ing lines. The general law, underwhich all cases should be
and
classed, soon becomes inapplicablein a particular,definite,
unique instance. The moral law must,therefore,-ifit is not
to sacrificethe true right of lifeto a seeming con?istency,only judge the general directionor the tendencyof the will;
and not give any special instructionas to how one should act
unconditionallyon particular occasions. In no other way
can the general validity of the law be reconciled with the
varying circumstances that differwith occasions and ages.
This may be called the historicalrelativityof the contentsof
the morallaw.t On the same psychologicalbasis, and accorddecisions mustbe
ing to the same universalstandard,different
historicalconditionsand circumstances,
made under different
as well in regardto the order of societyas in regardto the
* I have developed this thought before,but more froma methodological
pointof view in my"Ethik" (Dan. ed., i887, pp. 35-37; Germ.ed., I888, pp.
39-42).
t Comparemy " Ethik," Dan. ed., p. i6o f.; Germ.ed., p. i84.

35
actions of the individual. What is possible at one point in

the stage of developmentis not possible at another. A type
of the state,or the family,which might be introducedeverywhere withoutdelay, can as littlebe constructedon the principle of universalwelfareas on any other. Every social order
presupposesthat the individualswho are to compose it live
under certainpositiveinner and outer conditions. No social
structurecan grow on barrenground.
Hence the moral laws do not lose their significance. It is
true they cannot tell us how to meet everyswellingbillow on
the sea of life,or how we should cross in a certain definite
course. But they can informus in what directionwe should
steer; and they make it possible that our compass should
guide us unerringly,even if the way be not straight. The
moral laws formulatethe general demands made by the
highest aim of our endeavor. The means to the satisfying
of these demands may varywithinwide limits. But when the
generaltendencyof the will is understood,and when a man's
character has sufficientstrength and consistency,the particularways and means will be foundwithoutany danger of a
conflictwiththe finalaim. Kant has justly said that casuistry
is not a science, but an art, " not a theory of how to find
something,but a practice in how to seek fortruth."
Casuistrytreats of the problemswhich are given birth to
by the complex natureof objectiveconditions,when a decision
in accordance with ethical principlesis to be made. It seeks
to resolve the conditionsinto their elementsfor the purpose
of drawing fromthe general principlesa conclusion adapted
to the given circumstances. It establishes general rules for
doubtfulcases, or seeks, by the help of fictitiousexamples, to
develop the power of findingthe right course. But analyses
and universalrules cannotalways transferus fromone case to
another. It may be right,for example, that a higher and a
broader aim should overridea lower and limited one; but to
decide which is the morecomprehensiveaim in any givencase
is just the difficulty.For all aims are bound togetherso closely
of circumstances,
that,even apartfromthe varyingmultiplicity
one cannot be touched withoutleading to changes in a great

36
of Ethics.
InternationalYo7urna/
many of the others. And how are we to decide withcertainty

beforehandwhetherthe good or the bad effectsof a certain
withthem?
class are overbalancedby interfering
It cannot be laid down unconditionallythat,in a definite
case, the largeraim should be preferredto the narrower; so
that forinstance,when the interestsof the state are clashing
with those of the family,the interestsof the latter should
always yield, or that my interest should always give way
when it comes intocollisionwiththose of several others. For
the healthy developmentof life is not only founded on its
extent, but also on its power and depth,-not only on its
breadth,but also on its intensity. A deeper and fuller life
may be enjoyed in a narrowercircle of societythan in a wider
one. The power itselfthat holds the wider circle togetheris
developed and nourished in the narrowercircles of society;
so that the living strengthof the formeris dependenton that
of the latter. A feelingof communityarises withinthe limits
of the narrowercircle,which,afterhaving grown appreciably,
expends itselfuntilit becomes an importantpart of thatwhich
sustains the largercommunities. True productivityis bornin
the narrowercircles. The new thoughtsand the new powers
to have reoriginatein them. In cases of conflict,therefore,
gard to compass merelyshould not be considered decisive.
Something similar holds in referenceto the preservationof
the individual. The life of mankind gains in vigor in proportionas its individualmembershave the power to maintain
and assert themselves materiallyand intellectually. Within
the range of individualethics,self-assertionshould not,without furtherconsideration,be sacrificedto social devotion,-as
little as the interestof the smaller part of the community
should be sacrificedunhesitatinglyto the larger part. How
difficult,then, to give a right decision in a particular case
withoutdoing damage to the evenness and depth of life,or to
its widthand duration.
Anothercase of casuistryis presentedby the position men
should take in regardto other men's prejudices. Bentham*
* "Of the Influenceof Time and Place in Mattersof Legislation" (Works,
I x80).
p.

37
has given us the followingrule: " He who attacks prejudice

wantonlyand withoutnecessity,and he who suffershimselfto
be led blindfolda slave to it, equally miss the line of reason."
But how are we to decide in an isolated case, whether an
attack be necessaryor not,or whetherit is degradingslavery
to accommodate one's selfto prevailingprejudices? The circumstancesvary here to a special extent. And the question
is, whetherthe individuals in question are able to overcome
the inneras well as outerdifficulties
intowhichwe may plunge
them,when we attack what they considered unshakable,and
what lent theirlifefulnessand strength.
Benthammeans that we are too much inclinedin our day
to deny that the best laws of our time would have been the
best ones for formertimes. Butl in these strikingwords he
enunciatesthe principleof historicalrelativity:* " Were I to
choose to what I would (most truly and readily) attribute
these magnificentprerogativesof universalityand immutability,it should rather be to certaingrounds of law than to
the laws themselves; to the principlesupon whichtheyshould
be formulated;to the subordinate principles deducible from
those principles,and to the best plan upon which they can be
put together; to the considerations
by which it is expedient
the legislator should sufferhimself to be governed, rather
than to any laws which it is expedient he should make forthe
governmentof those who stand committedto his care."
III.
i. Besides thepsychologicalbasis and thehistoricalcircumstance,a third factorhas to be taken into account,-a third
conditionby which the moral decision has to be determined.
This essay aims to draw attentionparticularlyto this third
factorbecause of its not being generallymade as conspicuous
as the two others (especially the second). This factorenters
when different
individualswith like ethical principlesand in
like circumstances,but withdifferent
and capacities,
dispositions
have to be considered. Justas like principlesdo not lead to
* Ibid., p. 193.

38
InternationalYournal of Ethics.
like results undervarying circumstances,so they do not lead

on like occasions to like results,when the individuals who
will and act have differentnatural dispositions. This is the
of ethics,or its personal equation.*
individualrelativity
The several ethical theoriesseem to agree on thepoint that
the moral laws or commandmentsare valid forall men under
the same circumstances. The theoryof ethics,whichis based
on the principleof authority,startswith the assumptionthat
the authoritydemands the same things of all persons. On
the one hand we have the eternalwill, and on the other hand
those who are to followits commandments. The laws of the
state and the imperativesof custom are in like manner the
same for all men. Respect for persons, it is said, there is
none. According to the intuitiveschool a universallaw flows
out of human reason,which every one is obliged to follow,if
he is not to come into conflictwith himself,-that is to say,
withwhat correspondsto the universallyhuman in his nature.
The disciples of the principleof universalwelfarehave often
been inclinedto conceive it similarly. They deduce the moral
laws fromthe principleof universalwelfarein relationto the
given circumstances,and then considerthose laws to be valid
forall.
That a mistake is made here may be proved as follows:
On account of theirdifferent
capacitiesand impulsesthesamne
practical bearing on indemandswill have a highlydifferent
dividuals. The demand of a certain degree of self-control
over a naturalimpulse will, for instance,have a very different
individuals,because the impulse in
significancefor different
each mayvaryin intensity. That whichthe one accomplishes
withoutthe slightest effort,
because of the harmonybetween
the demandand the originaldisposition,the other may achieve
only aftera hard and prolonged struggle,while the thirdis
perhaps utterlypowerless to overcome his intractabledis* I have alreadypointedthis out in my" Ethik" (Dan. ed., p. I33 f.). It is
treatedmorepositivelyin theGermanedition(p. 154 f.), whereI have described
in ethics. In thisarticle
as the law of relativity
the law of individualrelativity
I employthe phrase "law of relativity"in a broader sense,makingit embrace
psychological,historical,and individualrelativity.

TiheLaw of Relativityin Ethics.
39
position. That which agrees with the inclinationof the first

becomes with the second a moral action carried out with
great effortand conscious will-power,and signifieswith the
third an insoluble task on account of his having lost sight
of the conditions fromthe beginning. The law is in reality
not the same forall three. And it is of no use to distinguish
here betweenthe law itselfand the different
capacities of the
individuals to fulfilit. For the differentiation
of the moral
law fromthe theological or judicial law lies in the factthat it
takes its origin in human nature itself. It does not come
fromwithout,but ought to issue froma man's innermost
being. But, in that case, it cannot be reached by merededuction fromgeneralprinciplesand commoncircumstances,
without regard to the idiosyncrasies of the special individuals.
As long as only these two points are taken account of when
the law is deduced, so long it is not yet the law for the individual,but only an abstractand impersonalclaim. The real
morallaw mustnotonlybe addressedto theindividua/,
butmust
also be individualizedin sucha mannerthattheverybeingof the
should
individual,throughthefulfilmentof the law's tendency,
receivea higherdevelopment.Account must be taken of the
special starting-pointof volition and action that lie in the
nature of these particularindividuals. Else the law would
ask somethingdifferent
(be itmoreor less) fromone individual
than fromanother. Only when it is expressed differently
for
each individual,accordingto his capacities,does the law really
ask the same thingof all.
This naturallyfollows fromthe principleof universalwelfare. The single individualis not only subordinatedto the law
which expresses the conditions of the welfare of mankind,
but he is himselfa peculiar memberof mankind. Two considerations must, therefore,be harmoniouslyunited in the
rightlaw,-regard formankind,and regard forthe individual.
The law is not discovered-it is not the right law-if both
requirementsare not fulfilled. While the individual in his
acts and endeavors works for the welfare of mankind,he
should work at the same time forhis own welfare,considering
that he himselfis a part of mankind. He must have, there-

40
fore,his own particularethics,which will differqualitatively

as well as quantitativelyfromthe ethics of other individuals.
His natureand his disposition,too, are determiningfactorsin
the formationof the law.
It would be a serious misunderstandingif one were to conclude fromthe above that all self-sacrificeis wrong. Selfsacrificeresultingfromenthusiasticlove and free resolve is
the expression of the innermostbeing of an individual,-the
feelingof an ardentdesirewithinhim. Self-assertionand selfsacrificemelt into one, in an act of devotion. Life has only
value now,however strangethis may seem, in being sacrificed.
But the question in each particularcase is, whetherthe individual has the ability of such self-sacrifice.This kind of
action can be demanded,withas littlejustice as otheractions,
from every individual alike, because the ability and the
impulse to devotion and enthusiasm are really not alike in
persons.
different
According to Weber's law, a sensation does not depend on
the absolute strengthof the external impression,but on the
relationbetween the present and the past impression,which
latterhas already determinedthe conditionof the percipient.
So, froman ethical stand-point,must the thing requiredof an
individual be deduced, not fromgeneral principles and the
given conditions,withoutreferenceto the constitutionof his
character,but fromthe relationbetweenthe objective demand
and the demands or dispositions of the individual,the proportion of which will be differentfor differentindividuals.
The purely objective demand may be compared to a burden
felton
which is, in itself,of the same weight,but is differently
the shoulders of different
people.
A complete individualizationof the moral laws is consequentlyrequired. A formulawhich should embrace all, or a
great numberof individualsonly, would be rough and superficial. When g is to be determined,we may be satisfied
sometimeswith the fraction2n2; but when greater demands
of exactitudeare made, we get to several hundred decimals,
and may still thinkof a greaterexactitude. Justas we always
miss somethingwhen we give a psychological descriptionand

41
explanation of a man's character,because we are unable to

grasp all shades and individual traits on account of their
great complexity; so when we want to determinethe individual task, we shall findin every man shades of differences
whichcannot be exhaustivelyexpressed in a general formula;
or, to put it more clearly,in the same formulaseparate coefficients
have to be inserted foreach individual. The judicial laws are the same forall, and the currentmoral laws are
formedon the pattern of the judicial laws. A fine sense of
individualdifferences
in respectto qualityand quantityis 'still
extremelyrare.
The same train of thoughtwhich caused the moral judgment to go back fromthe action to the motive must necessarilygo back one step further,
and consider the capacities
and dispositions which condition the origin of the motives.
The possibilityof the springing up of a motive is not the
same in all individuals. Only an extremeindeterminist
would
assume, as a German lawyer has recentlydone,* that " the
moral power to repress lawless impulses must be an unalterable quantitywhich has to be assumed as normallypresentin
all men,withoutregard to individualcapacity." An assumption'like the above conflictsso stronglywith all psycological
experience, that there is no doubt of its becoming rarer in
scientificcircles. A motive may not only assert itselfwith
varying strength,but its influenceon the will is dependent
on the relationbetweenits own strengthand the strengthof
the other motives present. Thus it will happen, as Butlert
has already pointed out, that two men have the same degree
of pity; but one has a strongfeelingof ambition or revenge,
while these feelingsare very weak in the other. They will
occupy, as regardsethics,very different
positions.
2. Aristotleis the firstthinkerwho directedhis attentionto
the problem we are discussing. When presentinghis wellknown doctrineof virtueas the rightmean, he lays it down
expresslythat,objectivelyconsidered (xar' abr3 tA 7rparda), the
* Quoted in " Vierteljahrschrift
ffir
wissenschaftliche
Philosophie,"vi. p.
t Sermons,xii. (Works,Oxford,i874, ii. p. 159 f.).

20I.
Inernational Yournal of Ethics.
42
mean is the same forall, because of therebeing two points to

be kept equally distant from; buit,subjectively considered
one on account of the in(7rp6fboa), the relationis a different
dividual's dispositions. Justas the same amount of food does
not sufficeboth the practised athlete and the mere beginner
in gymnastics,so the true mean of the emotional lifecannot
be foundat the same point in all men (-otro 8' oVX &Yovae TO avTO
raa~c)*. That which may be called courage in the one, because it presupposes the suppression of strong fear,may be
practised by the otherwithoutany effortof the will and the
overcoming of self. This idea is applied by Aristotle in an
interestingmannerto all the special virtues.
This Aristoteliandoctrine,which gives proof of a surprisingly fineappreciationof the importanceand the rightof the
individual,is in strangediscord,as I have shown elsewhere,t
with the conspicuous position which Aristotle allots to the
to the individual. Hie has made no
state in contradistinction
attemptto explain how that seeminglyindividualisticdoctrine
may be reconciledwith his objective social theory. More is
often demanded socially fromthe individual-so it seems at
least-than he is able to fulfilaccording to the " rightmean"
determinedby his nature. There is a range of problems,
dealing with the relations of the individual to society, of
which the ancient thinkershad not yet any clear conception. Aristotle's theory remains, nevertheless,one of the
most ingenious thoughts to be found in the realm of
ethics.1
It may perhaps be said thatAristotle,in his doctrineof the
individually determined right mean, unwittinglyraised a
problem which is in itselfinsolvable. It may seem that we
have to choose between two equally doubtfulexpedients,the
one landingus in an ethical objectivism,according to which
* Eth. Nicom., ii. 5 (p. iio6 a, 32).
" Ethik," Dan ed., p. 133; Germ.ed., p. 154.
4 The idea oftheindividualizationof themorallaw has been drawnattention
to in latertimesby Jakobi,Schleiermacher,and especiallyby Beneke (" Physik
by A. S. Orsted,in a paper " On
der Sitten,"i822); also in Danish literature,
the LimitsbetweenTheoryand Practice" (181 I).
t

43
a universallyvalid morallaw is untenable,because the law has

to be formulatedquite differently
for every individual; the
other,into an irreconcilableconflictbetween personal ethics
and the moral demands of the social lifeof mankind. But
the elucidation of the moral law we have attempted above
will enable us to get out of this dilemma.
Subjectivism is disposed of by the fact that, though the
moral law must assume a multiplicityof formsin and forthe
different
individuals,the tendency,
the aim, may yet remainthe
same for all. The moral laws formulate,as we have seen
fromanother point of view,tendencies or directionsforthe
conduct and order of life. When several boats are sailing
against the wind,theyattain,-on account of their different
dimensionsand structure,-withequal efforts,
different
results.
But this does not hinderthem fromobservingthe directionof
theirdestination,forthe destinationlies in the continuationof
their course. The objective view, therefore,does tot fall
away when we plead for the individualizationof the moral
law. Ethics must consider individual differencesin capacities and dispositions as actual starting-points,
which are not
to be destroyed,but to be made as fruitful
as possible. It is
true that theyare a barrierto ethics consideredas a science;
but a barrierwhich not only indicates the limits of thought,
but also the rich manifoldnessof life that cannot wholly be
classed under particularheadings, although the feelings of
many individual beings are directed against the final aim of
human action. This aim, at the same time,is so loftythat
the importanceof individual differencesin the application of
an ideal standard diminishes in great measure,if it does not
altogethervanish.
The otherseeming conclusion disappearswhen the relation
betweenthe individual and society is clearly grasped and the
real meaning of the moral law rightlyconceived. The individual is, frombeginningto end,a part of society,and thelife
of societyis no otherthan that containedin its members. The
goal of humanityis consequentlyunattained so long as its
claims on the individualcause an irreconcilablediscordwithin
him. When the will of societycannot be carriedout without

44
International-7ournaiof Ethics.
involvingthe deteriorationand the exterminationof the individual, it is a proof of some imperfectionin the order of society. The ideal is reached onlywhen the individual'sefforts
in the cause of societyalso serve the freeand harmoniousdevelopmentof his own facultiesand impulses. The greatest
welfareis to be foundwhere every individual develops himself in his own manner,and stimulates a similar development in other individuals. The individual is, then,at once
means and end. The point is that work in the directionof
the moral aim accomplishes itselfwithin the individual,but
that the amnount
of work that may be accomplished depends
on, and varies with,the stored-up capabilities. Every law
which gives not only the direction of work, but also its
quantity-" the quantumsatis of the human will," to use Henrik Ibsen's expression-can only state an average or a minimum. Thus it fareswiththe moral law in its positivehistoric
form. The standardapplied by the individualto himselfin a
certainage and a certain countrywill bear the stamp of his
time,his social rank,and his race. He judges his conduct as
he thinksan impartialspectatorof his people would judge it.
And even if the claims he thus makes on himselfbe fulfilled,
ratherby the general tendency-the innermostsoul-of his
desires than by a numberof adequate actions,it has still its
great pedagogical value in that the demands bear the stampof
objectivityas well as that of ideality. The desire to rise beyond his actual conduct will animate him the sooner and
easier. The contrastbetweentheideal and the social demand,
on the one hand, and the actual desire of the individual,on
the other,may oftenbe a necessarytransitionalstage to the
settingfreeof those moral effortsthat lie withinthe power of
the individual. A spark is necessary to give freedomto the
locked-up energy. And there are natures whose energies
can only be set free by a painful conflict with objective
principles. The way to harmony leads with them through
discords.
The two propositions-that the morallaw should formulate
the directionof conduct,and that it should act educativelystand in close connection with one another. For both de-

45
mands are fulfilledby the types or ideals which the moral law
holds up before us. The direction points to an ideal and
calls to imitationat the same time.
The clear distinctionbetween scientificand actual ethics,
between moral philosophy and moral exhortation,obtrudes
itselfhere. It is of importance,practicallyspeaking,that the
aim for all should be high, in order to develop the energies.
It seems necessaryto ask too much when we desire to get the
necessaryamount of work done. But scientificethics,in determiningthe conception of the moral law, can take no
cognizance of practicalnecessities. It does not enterintothe
in pracscientificconsideration,whetherit be easy or difficult
tice, to find the law which is appropriateto the particular
nature of a certain individual. Scientificethics,on the other
hand, in spite of seeming contradiction,presents an ideal
to the art of right conduct,forit can hardlybe doubted that
moral teaching will become efficientin proportionas it is
individualized. General moralizing cannot be held to be
effectual.
3. It may be asked, " Is not the moral law deduced from
the principle of welfare? Is this not a conclusion which no
regard for the natureof the individual can shake ? What is
thereforefairand just according to the general principle,must
be valid forall individuals." But, as we have alreadypointed
out, each individual,withall his capacities,is part and parcel
of that organismwhose well-beingis to be promoted. When,
consequently,an inexorable demand is made for something
which transcendshis powers,thereresultsan incongruitybetween societyand the individualwhich contradictsthe principle of welfareitself,-an incongruitywhose cause may be
which is inflicted
other than the individual. That suffering
on the individual by the irreconcilabledemands of his own
nature and those of society is to be looked upon not only as
a punishment,-like the sufferingthat arises from the disagreementof the individual natureand externalnature,-but
also as a misfortune, When it is found that changes in the
structureof society and the consequent conditionsestablished
forthe individualhave oftenmore influenceon the occurrence

46
International_7ournalof Ethics.
of crimesthan penal reforms,*then it is clear that it is wrong

to considera given communityand its demands as absolutely
just, and the individualand his definitenatureand dispositions
as absolutelyresponsible. The individual,as regards society,
is both cause and effect,and, what needs to be speciallypointed
out, he is an effectbefore being a cause. Even if in the
natureof the individualthereshould be the germs of an antisocial disposition,theirdevelopmentmighthave been checked
by a better state of society,or they might have been turned
into harmless ways, while
into otherchannels,or transformed
the presentstateof societyoffersthem,perhaps,the conditions
of a full development. The 'more,then,the governmentof
society is consciously undertaken,the greaterbecomes its responsibilitytowardsthe individualsconstitutingit.
If this point of view be correct,we may expect intimations
of it in theologyand in law, although these disciplinesassume
the absolute antithesisbetween the objective law and the individualswho are subject to it. Now, I finda trace of the individualizationof the moral law in the part which grace and
pardon play in these two disciplines. For in grace or pardon
there is expressed more or less clearlya regard for the individualityof the actor and his mental states. The orthodox
theological school goes so far as to maintainthat the natural
thelaw. Grace,consequently,in assertman is unable to fulfil
of a man is not appealed to by
whole
personality
the
ing that
the law, contradictsit. The verypossibilityof a reconciliation
implies that the law is not absolutely authoritativeas over
against the individual,else therewould be a down-rightcontradictionin the reconciliation. And when,in agreementwith
the orthodox doctrineof reconciliation,the sacrificeby which
the transgressionis propitiatedis made by God himself,who
is the giver of the law, one might recognize in this a symbolical expression of the factthat the real injustice must be
* G. Tarde, "'La Criminalitecomparee,"p. 6i: "Changez les conditions,s'il se
se
peut, de la soci&t6,bien plut6tque son systemede penalit6,et sa criminality
modifiera."On thesocial causes ofcrimes,compareMischler,in " Handbuchdes
Gefangnisswesens,"published by Holtzendorffand Jagemann,ii. p. 474,
48i, f.

47
attributedto the law and not to the individual. A pardon is

of the law,* or,as an
considered legally as the self-correction
older jurist puts it,t "To help to eke out the,imperfections
of the laws, to do away with the incongruitybetween the
legal punishmentand the desertof the individualtransgressor,
and also to harmonizewisely the inflexiblerigorof theimmutablelaw withthefickleinconstancy
of individual-guilt,and thus
to reconcilejustice with fairness, is the power put into the
hands of the supreme head in the formof the rightto pardon." If justice itselfis in need of a reconciliation,it must
be on account of its imperfection. Between the opposite legal
theological poles of sin and grace, crimeand pardon,oscillations take place in the direction of the two extreme points
whichhave truthfortheircentre. On account of the difficulty
of findingthe exact centrewe go beyond our aim,-first in
the one direction,then in the other. Instead of moving
diagonally, we move firstto the one and afterwardsto the
opposite side of the parallelogram; and thereare natures,as
has been remarked before,who cannot develop unless these
contrastsexist,and who are unable to move diagonally.
I findthis thoughtmore or less consciously underlyingthe
whole modern development of penal reform. When the
minimumof outwardmoralitydemandedof its membersby the
state requires different
for the natures of individuals
efforts,
are different,
it becomes the duty of the state to take cognizance of these differences,
and to seek in the natures of its
membersforstarting-points
of a developmentin the direction
of that which the law demands. The fixing of the law and
the punishmentis only part of its duty. It seems not to
have entered men's minds that the administrationof punishmentis of no less importancethan penal legislationand penal
decisions,and that the experiences in the administrationof
punishmentare of essential importancefor the penal legislation of the future. That the personal equation has imperfect
* H. Jhering, " Der Zweck im Recht," i. p. 428.
Vert Anselm von Feuerbach," Aktennllssige Darstellung merkwUrdiger
brechen,"Giessen, 1828, i. p. 353.

48
justice done to it, in the penal law and penal decision,comes

out clearlyat the time of the execution of the sentence. The
experiences in this departmentwill, therefore,in the future
evermore react on penal legislation. Franz von Holtzendorff
said not long ago, " Modern theories of punishmentmust be
built on inductionand on the experiencesof penal administration, ratherthan that the latter should be built on a prior
theories."* It has come to be admittedmore and more that in
penal laws one has to do withthe personalityof the criminal,
and not withthe crimeas an objective occurrence. There is
a demand forsentences,in the place of irrevocabledecisions,
and
which shall leave the termof punishmentundetermined,
also leave room forthe considerationof the characterof the
individualat the time of the execution of the punishment. A
distinct classificationof criminals with treatment differing
according to characteris also demanded. The penal reforms
in this century(fromthe time of JohnHoward) are permeated
by the idea that the criminal,if possible, should returnto
human society,not only humiliatedand restrained,but really
reformed.The facthas been generallyacknowledgedthatsome
people, according to theirinner and outer circumstances,are
next door to crime, while others are far removed from it.
The right of the individual against abstractimpersonallaws
is thus gradually being recognized. Individualizationand
humanitygo hand in hand, and are in realityinseparable.
In an ideal state only that would be demanded of each individual which lay withinhis range and power. The demand
would be suited to his peculiaritiesin the same manner as in
the education of a child the demand is suited to its stage of
growth,producingtherebythe developmentof its forcesand
preventingthe suppression of its individuality. The social
disadvantageswhich would arise fromrequiringunlike things
individualswould have to be balanced by special
of different
measures. As long as we cannotrealizethisideal of a state,all the institutionsand laws of which have an educational in* " Handbuch des Gefangnisswesens,"i. p. 387. The followingremarks
are takenfromthiswork.
relatingto the developmentof prison-justice

49
fluence,-so long must the state do that part of the work by

of punishmentwhich it has failedto accomits administration
plish in a moredirectlyethicalmanner. The establishedorder
leads to the hardand painfuloscillationof contrastsaround the
invisiblecentreof the ideal order.
4. Casuistical problems will oftensolve themselves when
the individualfactoris taken intoaccount. Viewed in a purely
objective light,it may be impossible to decide in a particular case whetherone should work fora larger or fora smaller
or whetherthe stressshould be laid on the extencommunity,
sion of the resultsof civilizationamong as many as possible,
ratherthan on the bringingforthof a new civilization,which
would provisionallyserve only a few. Questions of that sort
will,as a rule,be resolved by the fact that each person has
facultiesand dispositionswhich determinehis calling. For it
is part of the conceptionof a calling that a man's duty is not
only fixed by general ethical principles,but also by his individual capacities. The conceptionof a calling is founded on
the idea that mastershipimplies limitation,-all willing and
actingbeing concentratedon somethingdefinite,-andthatthe
limitationis mainlythe outcome of individual capacity and
individualenergy. It is these impulsesthat" call;" forenergy
has a tendencyto awaken a correspondingdesire. If, forexample, we consider proficiencyin the service of culture,we
shall meet men whose facultiesare fit only for activityin a
limited to
narrow sphere,and whose efficiencyis, therefore,
care forthewell-beingof theirown selves and theirneighbors,
theirwork consequentlybeing at best of only indirectimportance outside the narrowersphere. Again, therewill be other
men who are fittedto impress their fellow-menand work for
them,and who are properlyemployed in the extensionof the
benefitsof culture. And still otherswill have sufficientinstinctand energyto open new paths and discover freshpossibilities. These latterwill followtheirhandicraftand tend the
firstblossoms of the civilizationof thefuture,in spite of contradictionand want of understandingon the part of the people.
The individualwhoknowshimselfwill not waveras to where he
is just that of knowing
should turn. But the main difficulty
VOL. I.-No.

50
InternationalYournal of Ethics.
one's self,as Socrates,the founderof ethics,taughtso impressively. The great importanceof the fundamentalthought of
Socrates shows itselfhere. Self-deceptionis veryeasy when
we tryto discover our capacityand determineits limits. No
in this case. One must
objectivecriterionis wholly sufficient
always risk something. Every choice is here a practical
hypothesisto be verifiedby experience. An individualwho
in his ethical formulawould
introducesincorrectco-efficients
not be able to accomplish his task.
The same holds when,as an example to illustratethe law
of relativityin ethics, we consider self-controlinstead of
vocation.
Self-controlin some things may coexist withtotal absence
of self-controlin otherthings. The Indians, forinstance,are
when they fall into
able to bear the most horrible sufferings
the hands of theirenemies,or when, by voluntarysubmission
to castigations and tortures,they aim to propitiate and do
honor to their gods. Illness, too, they sufferwithout complaint; and theydemand of theirwives to bring forthwithout
exclamationsof pain. In theiroutwardbehavior they always
preserveperfectcalmness,spotless gravityand decency,even
when the strongestpassions upheave them inwardly. But in
the presence of enjoymentsof food,drink,and games, they
cannot restrainthemselves. It needed great exertionon the
part of some chiefsto lay down the rule that drunkennessis a
vice. This is a proofthatself-controlis not a constantfactor,
independentof all otherparts of the innerlifeof man.
A special application of the principleof individualization
has to be made in relation to the sexual instinct. Different
individualsare very dissimilarin this respect. There are persons whose instinctharmonizeswiththeir moral feelings,not
demandingsatisfactionwhereit is not the basis of a deep devotion to another individual,who is looked upon with joy and
admiration. This is the more important,consideringthatthe
satisfactionof the sexual instinct,not being possible without
relationto another,is specially subject to a moral judgment.
the
Apart fromthis relation and the resultingresponsibility,
satisfactionof the sexual instinctwould have to be judged

5'
only froman individual or egoistic point of view,-that is to

say, by hygienicconsiderations,or with regardto the harmonious developmentof the mentaland bodily health of the inorigidividual. But the great problem,the moral difficulty,
nates in the factthatthe powerfulinstinctwhich gives rise to
such strongfeelings,and is so importantforthe development
of the individual,is to be satisfiedwithoutcausing physicalor
disastrouslyin
moral harm to otherindividuals,or interfering
the rightsocial order. Besides the happilyconstitutedindividuals we have mentioned,thereare othersin whom the instinctexists in its originalbrutalityas a mere physical desire,
tothe satisfactionof which may go along with indifference
wards its object. With others, again, the instinctis comparativelystrong; but theyare able to divertit by thought
or other labor. There are, on the whole, countless gradations,up to the " morbidly increased sexual desire," which
shows itself,according to Krafft Ebing,* in "neuropathic
constitutions." There are individuals who suffer"greatly
duringa great part of theirlifetimeunder the burden of the
constitutionalanomalies of their emotional life." The two
disposed. The
sexes are generallyin this respect differently
harmonybetweenthe sexual instinctand the true devotionto
anotherindividualis certainlyfarmore prevalentwithwomen
than with men. -Butwith men also, as we have just said, the
strengthof the instinctand its relationto other motivesvaries
are generimmensely. The numberlessindividualdifferences
ally overlooked,and yet theyare the most importantpoint in
the sphere of sexual ethics. Equally absolute assertions are
made by two opposite parties. On the one hand, strictuniversal commandmentsare formulatedwithout seeing that a
burden is laid on the shoulders of different
very different
people. On the other hand, a physiological necessityis proclaimed,to which all must submit. The one, as well as the
other,is unwarrantedby the factsof the case. The sexual instinct in man arises under differentconditions than in the
animal world. When the instinctbecomes maturein a human
* ccPsychopathiasexualis," Second Edition,p. 34.

52
InternationalY7ournalof Ethics.
being, there has already taken place a development of the

in otherdirections. Ideas and emotions
powerof self-control
flow exist which do not readily yield to the instinct,and
which,when the attentionand interestfor moral self-maintenance are roused,weaken it and bring it into agreementwith
the other demands of life. Only let it not be forgottenthat
consideredas a negativevirtue,is a psychological
self-control,
impossibility. It is too often left out of sight in ethics that
one impulse can only be displaced by another. The strength
of the inclinationto be suppressed is not the only thingto be
considered. It is also necessaryto take note whetherthereis
room forotherinclinationsthat could absorb the store of energy. Deep love and great enthusiasmare wanted to fillthe
heart. The law of relativityin ethics is here a pure consequence of the law of the conservationof energy.* The energy
at the disposalof our mind or brain is,at any given momentof
time,limited. The moreenergyexpended in the satisfactionof
theone desire,theless remainsat thedisposal oftheothers. Annihilationis impossible;but transformation
intootherformslies
withinthe range of possibility. The great heroes of self-control had a profoundenthusiasmfor other aspects of life than
thatwhich theywantedto forsake. The power of self-control
which the Indians exhibitwhen they are wounded in war, or
suffer
pain in prison or in religious devotion,is determinedby
theirideas of honor,theirdispositions,and theirreligiousbelief.
The circumstancesunderwhich they lived did not favor the
growth of motives opposed to licentiousness. In proportion
as an individualprogresses in intelligence,taste,and sympathy,there is an evolution of a higher sensibility,which, as
Leslie Stephent has remarked,produces a feelingof disgust
and contempt for sensual excesses, even apart from their
probable consequences,-a sensibilityacting as promptlyand
imperativelyas any otherelementarysense.
The struggleof self-controllasts until the new application
* The law of inertiacould also be applied here. By thislaw Spinoza proves
nec coercerinec tollipotest,nisi
proposition:" Affectus
the followingimportant
et fortiorem"
(Eth., iv. 7).
contrarium
per affectum
t "1Science of Ethics," pp. 192, 198, 200.

53
of energygains completeascendency. This struggleassumes

very different
proportionsin differentindividuals,in accordance with the relative power of their original or acquired
tendencies. With some men the transitionis never completed without a struggle. There are others who have to
strugglehard,and yet are unable to gain a sure footing. The
will-powerexpended by the latteris farmoreserious thanthat
expended by the former,however small the outward result
appears. The reason thatJesus associated morewiththe fallen
women thanwiththe Pharisees may be, perhaps,thathe found
in the prostitutesan inwardendeavor and desire which were,
it is true,unable to break down the opposing barriers,but yet
stood in more intimaterelationwiththe ideal moral law than
the self-satisfied
uprightnessof the Pharisees.
The law of relativitythrowslight on many moral problems
that would otherwiseremain insolvable,by showing that the
actual moral development starts from differentpoints. It
teaches us to combine the theoryof ethics with the practical
acknowledgmentof the manifoldnessof life.
5. Where thereis an agreementbetweenthetask arisingfrom
the general principlesand the particular circumstances,and
the capacities and desires of the individual,we have the happiest man, and, if the task be sufficiently
great,the greatest
man. The points to be noticed in such men are the inner
securityand harmonywithwhich they filltheirstationin life,
in spite of inner and outer struggles. Here we have the
" organic morality"spoken of by Herbert Spencer. That
thereare people of this kind is a fact,whatever may be its
explanation. They are patternsforother men. It must here
be maintainedthat the task laid on the individualis not based
merelyon unchangeablecircumstancesfixedonce forall; but
that the individual may make it his dutyto change the given
circumstances,if possible, by dint of his own capacity and
desire,and his allegiance to the highestprinciples. The great
pioneers of humanityexperience a developmentof capacities
and desires which,underthe actual conditions,cannot be satisfied,and which,therefore,
give rise to new conditions. Individuals of this type arise probably through one of those

54
International-ournal of Ethics.
variationswhich are, according to Darwin, the condition of

developmentof new formsof life. Their rightis at one with
theircapacity. They become also, throughthe verydevelopment of that which lies in their nature,emblems of a new
tendencyin one of the departmentsof human life,and, therefore,helps to the progressof the race. Nature and art,nature
and duty,act here in immediate unison. These men possess
the law in a higher sense than may be said of those who do
not contain the possibility of a higher development. But
"organic morality"may, of course, also exist in the latter,
forthe harmonyof natureand task is conceivable in both.
The complete opposite of such natureswould be found in
individuals in whom not the slightest desire or ambition in
the directionof the moral law could be detected. All the coefficientsof the ethical formulawould alike be zero. No
demand,howeverpedagogically formulated,would meet with
any response. Among other things,the problemarises now,
whetherthere are incorrigiblecriminals. This is a question
which has been positivelyaffirmed
withinrecentyears by the
Italian criminal-psychological
school.
This school has great scientific
merits. The ordinarymoral
and legal view goes no furtherthanthe action and the motives
lying nearest to it, and fails to investigatethe cases which
producedthe whole characterof the actor. The indeterminism
formerly
rulingwas favorableto thisview. The anthropology
and psychologyof crime,which owe so much to the Italian
school, seek to do away withthisone-sidedness. The intention
of thisschool is to discoverthe bodilyand mentalpeculiarities
of the criminal,and to trace them to their causes. On this
basis it has singled out the criminal type (homo delinquens)
as a special varietyof the general human type. Among the
bodily peculiaritiesof the type,Lombroso specially mentions
markson the cranium,the brain and the features,which must
be regarded as retrogressivedeviations fromthe type of the
civilized man,such as the small capacity of the craniumand
the small and narrowforehead. Among the mental peculiaritieshe alludes especiallyto a marvellousinsensibility
to pain,
withwhich a not less strange lack of pityprobablystands in

55
natural connection. The vaso-motoricreflexesare weak on

the whole,and typicalcriminalscan rarelyblush, Moral sensibilityis wanting,and shows itself,as Despine had already
pointed out, in the great rarityof remorse. The whole type
is to be explained according to Lombroso and the Italian
school by atavism. This disease arises in our day by deep
prehistoric layers protruding in the midst of civilization.
The absence of motiveand the utterregardlessnessof typical
criminalactions are thoughtinexplicableon any other hypothesis, and the frequentrelapses and meagre effectof the best
considered systems of punishmentare held intelligibleonly
when such reappearingprimitiveforcesare assumed.
The moralsense, says a prominentItalian scholar,Garofalo,
in his " Criminologie,"is the work of centuries.When, therefore,as experience proves, some individuals have not been
benefitedby it, but are sufferingfrom innate moral insensibility,showing itselfin the total absence of pity,even in its
most elementaryforms,how could one imagine that any impression or education could accomplish in a lifetimethat
which the race had to acquire through repeated experiences
during thousands of years? Man is good frominstinct,not
fromreflection. If the instinctis wanting,what other force
is to take its place ? Individuals,who are not victimsof passing temptations,but who go back repeatedlyto theircriminal
haunts, or whose comparativelyslight motives to action and
revoltingmanner in carryingthem out give us insightinto a
rooted.antisocialdisposition,-such individualsit is impossible
for a civilized communityto assimilate. They would have
been in their place in formercivilizations,and even now, perhaps, in Dahomey or on the Fiji islands; but it is' hopeless
to wish themrtobe incorporatedin our social life. Towards
themsocietycan have no duties. On thecontrary,it is a duty
it owes to itselfto eliminate " molecules" harmfulto the life
of the remainingparts of the organism. It is also an individualisticone-sidednessto assert that criminalsof thattype have
any rightsat all in oppositionto society. Social necessityis
unconditional,and social reactionsuffersno resistance.
Thus far go Lombroso and Garofalo. The view advanced

56
by these scholars is of interestto us in this place, because

they assume absolute moral insensibilityin some men. Not
only individual relativity,but also psychological relativityis
thus done away with. An order would have to be supposed
in criminal natures diametricallyopposed to the order on
which human development,conscious and unconscious, is
based. And there would be no means of overturningthe
formerorder, unless by a war of extermination. Before we
give our assent to such a doctrine,we must firstsubject it to
a close examination.
(a) To deduce the innermostcharacterof a man and the
possibilitiescontainedin him fromisolated instancesis always
unsafe. According to Garofalo the crime need not be even
exceptionallygreat,and yet the examinationof the criminal's
characterby a judge versed in anthropologyand psychology
may be sufficientto determinewhether the individual can
accommodate himselfto the demands of society,or whether
he should be eliminated. Nay, not even an action is always
necessary,an attemptis considered sufficient.
The conclusion drawn fromthe absence of repentance is
equally unreliable. It is metwith in criminalswho have been
sentencedto death, or in prisoners,such as Doctijevski saw in
Siberia, who have not been subjected to true pedagogical
treatment. The fact that repentance cannot be awakened
withinthe short time that elapses between the committalof
the crimeand the execution of the sentenceof death, or that
repentancehas not been aroused in prisonerssubmittedto the
ordinary treatment,customary down to our present time,
does not entitleus to conclude that it could not be aroused
underany circumstances
whatever. The frequencyof relapses,
too, points to rooted tendencies ratherthan to incorrigible
ones.
Garofaloobjects to fixingthe time for criminals sentenced
to prison," because it is impossible to determinein the crime
the partwhich is owing to the surroundingconditionsand the
part of which the individualhimselfis the cause." Only after
a prolonged trial,in which one comes to be more intimately
acquaintedwiththe characterof the individual,maythe period

57
of punishmentbe fixed.* By what right,then,can one demand absolute eliminationin some cases ? For the unreliabilityof the insightinto a criminal's character,which causes
the period of punishmentnot to be fixed beforehand,must
also destroythe possibilityof laying down eliminationas the
only possible expedient.
(b) A new problem arises when the incorrigibleantisocial
dispositions are explained by atavism. How could such
marked peculiarities that influencenot only one side of an
individual's character,but his whole nature maintain themselves in the race along with peculiaritiesof a totallydifferent
kind ? How could the thread which connects the individual
with the primitiverace escape being woven togetherwiththat
otherthreadwhich links it to the directlypreceding generations and the institutionsand traditionsproduced and transmitted by them? To put it in other words: granted that
the explanationby atavism is correct yet atavism is noproof
that societyowes no debt,and consequently
no dutyto the individual. For if the antisocial germs have maintainedthemselves in the race in a latent formfor so long a time without
that must be the resultof failingsand imbeing transformed,
perfectionsin the life of mankind itself. The perfectionof
social conditions and the moral life generallymust be measured,not by the positive advance alone, but by the lost and
neglectedpossibilities. The more perfectthe state of society
is, the more does it act on the innermostbeing of individuals.
Atavism, therefore,is in itselfa sign of social imperfection,
and does not justifyplacing society and the criminal over
against each otheras absolute rightand absolute wrong. In
placing criminals,both as regardsbody and mind,outside the
* " Criminologie,"p. 395.
t G. Tarde has criticisedthisexplanationin his " Criminalitecomparee." He
arrivesat the conclusionthat,thoughthereare unquestionablephysiologicaland
anatomicalanalogiesbetweenborncriminalsand savages, and thoughcriminals,
like all monsters,exhibitretrogressive
traits,
yetthesetraitsare combinedin them
in apeculiar manner. It is wrong,therefore,to judge our ancestorsby this
method(p. 46). The combination,
then,mustbe explained,and it surelycannot
be independentof social evolution.

58
InternationalYournal of Etkics.
limits of society, the Italian school, strange though it be,

reaches the same conclusion as indeterminism
and individualism, though these in otherrespectsare theirdirectantipodes.
(c) When Garofaloteaches,as formerlyDespine had done
(and before him Anselm von Feuerbach), that moral insensibilitymay remain latent until outward occasions bring it to
light; when he teaches that,though povertybe not the cause
of crimes,yet manymen would have remainedlatentcriminals
only,if they had lived amidst different
surroundingsand had
notbeen poor, then it is clear that society must be a concurring cause, its orderalways more or less conditioningthe surroundings of the individual. We may make as sharp a distinctionas we like betweenmereopportunity
and actual cause,
it must always remainmore or less artificial,forthesufficient
cause consistsbothof theexternalopportunity
and theinner disposition. This point must be made all the more prominent,
because those " opportunities"constitutethe tremendousdifference between two latent criminals,declaring the one incapable of assimilation,and admittingthe other to continue
his lifeas a social molecule undisturbed.
(d) Inheriteddispositions
have always a certainindefiniteness
which renderit possible,througheducationand externalconditions,to develop them in various directions. A fatalistic
tendencyin nature,nullifyingall experience,occurrences,and
endeavors,cannot be proved to exist. Even if a good education and favorablecircumstancesshould be powerless to stifle
the evil germ,but were able only to effectits growthwithout
causing social mischief,it is all the same true that a bad education contributesextraordinarilyto its growth. It will be,
therefore,
impossibleto draw a sharp line betweenthat which
is owing directlyto the individual and the circumstances
underwhich he lives (which are mostlythe outcome of the
social order). Absolute egoism is very often not present at
all. Regard for the familymay oftenbe highly developed in
criminal natures,preventingthe rousing of the criminal instinctsexcept at the sight of strangers. A possibilitymay be
found here to awaken wider sympathy. For human love
itself,in the firstinstance, has started from regard to the

59
family,and graduallyembracedlargercircles. Anotherstarting-pointshould be looked for in the egoistic feelingsof the

criminal and in his desire to assert his personality. Doctijevski remarksthat useless labor would be the severestpunishment for the criminal. Useless labor makes personality
somethinghollow, of no importanceto either self or others.
This remnantof true self-esteemwould be unable, without
some external stimulus, to overcome the indolence which
formsan importantfeaturein the criminal type,but it could
offera starting-point
fortheireducation. Modern systemsof
punishmentare justly convinced of the truththat education
should be carriedon by means of labor.
(e) That our institutionshave not solved the problem of the
increase of crime,and especially the preventionof relapses,
is no proof that there exist incorrigiblecrimninals,-individuals in whom no moral desire can be awakened, and who
could not be brought into any relationwith the moral ideal.
Though unconditional return into human society be not
always possible, there might still, perhaps, be awakened a
desire which would lead, howeverslowly,in the directionof
the ideal. A reconciliationwould then be possible, and absoluteeliminationbe out of the question. For it is probable
that our ideas of punishmenthave reached theirfullgrowth?
Reformhas onlyjust begun. People, untillately,have busied
themselves more in thinkingout punishmentswhich would
satisfythe pleasure of revenge and the desire of intimidation
than to findways and means by which to exert an influence
on the characterof the criminal,thus making good, by a retarded education,what had been neglectedat a formerperiod
of the present order of society. This was the resultof the
externalview thatpeople took of crime. The exclusive thing
consideredwas thatthe crime had been committed,and little
notice was taken of the how and the why. The Italian school,
by its works,which throw light fromso many sides on the
character of the criminal,will contributemuch towards extinguishingthese incorrectideas. The meritis independent
of the correctnessof the particular conclusions the school
draws fromits labors.

6o
It remainsat least an open question,afterall this,whether

there are human beings who are utterlyincorrigible,and in
whom no sympathyforthe moral law can be awakened,however much the law may be individualized. The replyto the
above question is not of decisive importancefor the general
theoryI intendedto develop in this essay. But if the theory
ofthe quantitativeand qualitativeindividualizationofthe moral
law be correct,it challengesus at least to greatercautionwhen
declaringthat some individualsare absolutelyunsusceptibleto
moral influences. If each individual has his own moral law,
that question is much more difficult
to answerthanifwe were
justifiedin assuming an objective law which every one has to
follow. A sense forindividualdifferences,
and a patience that
could wait till the hard crustis broken,would then be needful. The positiontaken in respect to criminals-" the criminal type"-has been fora long time similar to that customarily taken by Europeans in regard to-other races. Justas
it has been denied,withoutany furtherinquiry,that the latter
have any capacityforcivilization,*dooming them forthwith
to
extinction,so it has been denied that there is any likelihood
of criminals having a moral sense, and forthwiththey are
sentencedto " elimination."
6. Finally, I shall entera little more closely on the question already referredto, that the meaningof individualdifferences in ethics is not exhausted by the necessityof a thorough
individualizationof the moral law, or by the fact that life
acquires more fulnessand manifoldnessthanifitwere ordered
according to definitegeneral rules. The progress of mankind
also is intelligibleonly on this hypothesis.
* The criticisms
withwhich Th. Waitz meets the assertionof the incapacity
of the NorthAmericanIndians forcivilizationare of interestin connectionwith
the above. He says,amongotherthings('i Die Indianer Nordamerikas,"p. 74),
" The long persistenceof the North American Indians on a verylow level of
cultureproves certainlylittleor nothingagainst theiressentialcapacities,since
theyhave notbeen placed forany considerabletime under conditionsfavorable
to progress. And, furthermore,
when a people has not been affected,
so far as
we know,formanycenturiesby anythingwhich mighthave a transforming
influenceon its organizationand mode of living,-on its innerand outerlife,-it
is probablethata fargreaterpower and a much longer timewould be required
to succeed in carryingout a transformation
thanvice versa."

6i
Evolution in the organic world,so Darwin taught,is only

possible when variations are ceaselessly going on. Of the
spontaneous yet inexplicable variations,those are selected
and retainedwhich are of most serviceto the continuedpersistenceof life. They become thus typical of continuedbiological evolution. An analogous case is foundin the sphere
of ethics. Those in whom the properties of character demanded by the moral law develop with the greatest power
and in the highest degree,and who can overcome the inner
and outer resistancewith ease, or, if by hard struggle,yet in
such a mannerthat barrierswhich stood in the way of human
development can be broken through,they perhaps do not
stand higher than the many who have to struggle hard to
maintain only the level of development,and who generally
keep on the beaten high-roadsof life,but theyare types able
to guide, encourage, and to console. They do not merely
indicate,as patternsto be imitated,theway and thedirection,
but theyalso show the possibilitiescontainedin human nature.
Human beings are closely relatedto one another,in spite of
the great individualdifferences
that exist betweenthem; and
it is fairto conclude thatwhathad been attainedby those who
have made the greatestprogressis also attainableto a certain
degree by others. As HerbertSpencer has said, " What now
characterizesthe exceptionallyhigh may be expected eventually to characterizeall, forthat which the best human nature
is capable of is withinthe reach of human natureat large." *
History shows us that those men who have been moral patterns for long periods were not always filled with strong
and enduring essential contrasts,or had charactersthatbore
the stamp of inner struggles,but were rather harmonious
souls, who lived and breathed in a great idea, to which the
differentdesires of their natures subordinated themselves
withoutany severe struggle. And this is.plain, forhe whose
strengthis expended in inwardwarfarecannot easily present
to anotherthepictureof the perfecthuman type,especiallynot
directedtowardsan important
thatof a powerfulpersonaleffort
* " Data of Ethics," p. 256.

62
InternationalYourncdof Ethics.
aim. In religiousmythologythishas been carriedto such an

extentthat the ideal man has been representedas sinless,and
attemptshave been made to remove fromhim everytrace of
actual human suffering. This is aiming beyond the mark.
But it, nevertheless,is a proof of the need of loftytypes,a
need whichcan neverbe dispensedwith,iflifeis not to become
shallow and insipid.
The individual relativityof the moral law does not consequentlydestroythe solidarityof the human race, forits unity
consists in and throughthe manifoldnessof the individuals.
The rightto speak of a morallaw,as I have attemptedto show,
lies in the common directionand tendencyof life,and out of
this,in spite of all differences,
springsthe unityof mankind.
HARALD
THE
ETHICS
OF LAND
H6FFDING.
TENURE.
IT is expected that the assailantsof privatepropertyin land

should outnumberthe defenders. This is usually true of an
" Quis'excuses'accuse;"
havinggreatmoralstrength,
institution
a plea for such an institutioninvolves a certain concession.
Should advocates take the floorwhen the verdict has been
given? In freecountriesthe people's sense of rightexpresses
itselfin laws; and in modernstates it has actuallypronounced
in favorof the privateownershipof land. In our own country
States,whose governmentsreflectthe local popular
forty-four
will, have successivelyestablishedthe system,and the Federal
government,reflectingthe will of the whole people, has confirmedit. All have sustained the systemfromyear to year
by currentlegislation. Should we strengthensuch a verdict
by an apologetic plea ? Moreover,in practicallifeargument
counts forless than experiment. If a single one of our States
were to appropriateland-values,it would become an objectothers,and would teach
lesson for the people of forty-three
them more factsconcerningthe rightsof land-ownershipand
concerning the utilityof the system than discussion could


The Law of Relativity in Ethics

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Law of Relativity in Ethics

Uploaded by

Copyright:

Available Formats

The Law of Relativity in Ethics

Author(s): Harald Hoffding

This content downloaded from 193.104.110.108 on Tue, 13 May 2014 18:37:36 PM

This content downloaded from 193.104.110.108 on Tue, 13 May 2014 18:37:36 PM