III
LEGAL
QUESTIONS.
THE TASK AND THE LIMITATIONS OF DEMOCRACY.
PUBLIC LAW. CRIMINAL LAW.
THE acquisition of right
views on social life depends to a large extent on a clear
understanding of the relations existing between human beings who, in
their life together, organize the social conditions and the
institutions under which they live. An unprejudiced onlooker will
discover that all the institutions in social life originate in the
first place from measures dictated by the will of man. And he who has
won his way to this view will come to the conclusion that the factor
of decisive importance in social life is the conduct of human beings
towards each other, the employment of their forces, their capacities
and their feelings towards others in a social or unsocial manner.
People imbued with social sentiments and views will mold their
institutions so as to make them work socially. And it is true to a
very great extent that the ability or inability of any individual to
provide himself with the necessities of life out of his income will
depend on the manner in which his fellow-creatures furnish him with
the means of a livelihood, upon whether they work for him in such a
way that he can support himself out of his own means. To put this in
the most practical form: the ability of man to procure enough bread
for his wants will depend upon the fact that society has taken the
needful steps to enable everyone who works, or who performs a
service, to have a corresponding quantity of bread in return for his
work. The opportunity of really turning his work to account, of
bringing it to that point at which he can earn what he needs for his
existence, is again determined by the presence of social institutions
in his environment, by the aid of which he can find his proper
place.
Now it really requires
only a small amount of unprejudiced insight into social life in order
to recognize what has just been said as an axiom, a fundamental
principle of the social question. And whoever does not recognize it
will hardly acknowledge the truth of the principle, because he has no
inclination to look at life with an unprejudiced mind in order to
convince himself, as he might from every occurrence in life, that it
is so. It is true that this way of viewing life is particularly
unpleasant for the average man. For it is a matter of great
importance to him that he should be left undisturbed. He is very
willing to hear of institutions being improved and transformed into
something better, but he regards it as an infringement of his dignity
as a man if it is found necessary to tell him that he ought to change
his own outlook on life and his own manner of living. He gladly
agrees that institutions should be modeled on social lines. He is not
at all pleased, however, with the proposal that he should model his
own conduct on these lines. Hence, something most remarkable has
entered into the modern history of evolution. In the course of the
last few centuries, as I have already shown in the first lecture,
economic life has developed far beyond all the conceptions which have
been formed of it, especially in the spheres of law and of cultural
life. I pointed out in the first lecture that the social criticism of
Woodrow Wilson himself amounted to nothing more or less than the
statement that the economic system has laid down the law:
‘Economic life has made its demands; it has been advancing, and
has assumed certain distinct forms. The legal system and cultural
life, through which we seek to govern the economic system, have
remained stationary at their old points of view. They have not kept
pace.’ In these sentiments Woodrow Wilson has undoubtedly
expressed a deeply significant fact of modern evolution.
With the rise of the
complicated conditions of technical industry and of the equally
complicated capitalist conditions entailed by the former, with the
era of big industrial enterprises, economic life has simultaneously
put forward its demands. The facts of economic life have gradually
eluded us. They go their own way more or less. We have not found the
force within ourselves to govern economic life by our thoughts and
ideas.
Modern thought
regarding the demands of economic life, the consideration of economic
matters, as these come under direct observation, have led more and
more to adaptation of legal and intellectual conceptions to these
immediate facts. Thus we may say that the chief characteristic in the
evolution of humanity for centuries has been that the conceptions of
law, according to which men strive to live at peace with one another,
as well as those of intellectual or spiritual life, according to
which they develop and form their capacities, have become to a great
extent dependent on economic life. The extent to which in modern
times human thought, and the attitude of human beings towards one
another, have become dependent on economic matters passes quite
unnoticed. Of course, the institutions of the last centuries have
been created by human beings themselves, but for the most part they
are not based upon new thoughts and ideas; they are, rather, the
outcome of unconscious impulses and unconscious instincts. In this
way something which we may truly call an element of anarchy has
arisen in the structure of the social organism. In the first two
lectures of this series, I have described from different points of
view this element of anarchy in the social organism. But within this
social edifice of modern times, those conditions have arisen which
have led to the modern form of the proletarian question. To the
workman, called away from his handicraft and placed at the machine,
shut up in the factory, what was the most obvious fact as he looked
at life around him? Looking at his own life he saw chiefly that all
his thoughts, all his rights with regard to other men, in fact,
everything is determined by powerful economic conditions, by those
economic conditions which he must accept because he is economically
weak as against the economically strong. Thus it may be said: In the
leading circles, among the governing classes, there is an unconscious
denial of the fundamental principle that human institutions should
grow out of the conscious life of men themselves. People have
forgotten to apply this truth in social life. Gradually these
leading, governing classes have given themselves up instinctively to
a life in which culture and law are subject to the power of the
economic system, even though they may not believe this. This has
given rise to a dogmatic conception of life among socialist thinkers
and their followers. The conception of life which has resulted from
this thought is that such conditions are inevitable in human
evolution, that there is no possibility for the individual person to
organize legal conditions or a system of culture suitable to himself.
They believe that culture and law result naturally as appendages to
economic realities, to branches of production and so on.
Thus among large
numbers of people the social question has adopted as its
starting-point a positive demand. Their fundamental belief was that
the economic system conditions the life of rights, conditions too,
the cultural life of the people. Therefore the economic life must be
reformed so as to bring forth a system of laws and culture
corresponding to the needs and demands of the masses. The proletariat
has learnt from the life and habits of the leading classes to believe
consciously that which the latter had carried out instinctively in
their lives; it made this a dogma. Today the social question faces us
in the following aspect: Among great masses of people there is a
widespread conviction that, if only the economic life and
institutions were revolutionized, everything else, law and culture,
would evolve of themselves; that economically just, good, socially
organized legal and cultural institutions would result. Under the
influence of this opinion they have failed to recognize the real crux
of the modern social problem. The point on which the whole social
question turns has been hidden by this dogma through a great
deception, a mighty illusion. The fact is that precisely these
conditions — the dependence of law and culture on the economic
life — are a historical result of evolution. This must be
overcome. While in wide socialist circles the belief is current that
the economic system must first be changed and everything else will
follow of itself, the truth is that each one must ask himself the
question: What conditions within the sphere of equity and of
culture must first be created in order that a new cultural and a net
legal system may give birth to economic conditions which will satisfy
the demands of an existence worthy of human beings? Not the question:
How can we bring law and culture more and more into dependence on the
economic life? But rather: How can we escape from that dependence?
That is the question to be asked before any other.
This is a very
important consideration; for it shows us the obstacle barring an
unprejudiced understanding of the present social question. It shows
us that one of the chief obstacles is a dogma which has grown up in
the course of centuries. And this dogma has become so firmly fixed
that at present countless educated and uneducated persons of
proletarian and other classes ridicule the idea that the system of
equity and of culture could be purified in any other way than by the
reformation of the economic system itself.
It is my task today to
speak of the equity state; the day after tomorrow I will speak of the
cultural life. The equity state, due to its particular nature and
significance, has often presented to us the question: What is really
the origin of rights? What is the origin of that feeling which
prompts men to say in their dealings with one another that a thing is
just or unjust? This question has always been a very, very important
one. Yet it is a strange fact that many social thinkers have entirely
lost sight of the actual question of rights. It exists no longer for
them. There are certainly many academic-theoretical treatises extant
regarding the nature and meaning of law, but what is generally
characteristic in the study of social matters is that the question of
equity is more or less neglected.
In dealing with this
subject, I must call your attention to something which at the present
time is becoming more and more evident, although a short time ago it
was quite unobserved. People have become aware of the approach of
untenable social conditions Even those whose own lives have remained
more or less untouched by the present unsocial conditions have
attempted to find a solution. And though a comparatively short time
ago people laughed at the idea of legal and cultural spheres
influencing economic affairs, today we encounter more and more
frequently the assertion which seems to come from the obscure depths
of consciousness: It is quite true that in the relationships of human
beings in social life, questions affecting the feelings, and relating
to equity, must also be taken into account. Much of the confusion in
social conditions has been caused by the want of consideration given
to moral and psychic relationships and to conditions of equity on
their own ground. Thus there is now a slight indication — so
obvious that it can no longer be overlooked — that an
improvement in the present conditions must come from a quarter
different from that of purely economic interests. But this has as yet
little influence on the practical discussion of the question.
Like a crimson thread
running through all the sentiments of the later socialist thinkers is
the belief that a social structure must be built up in which human
beings can live in accordance with their capacities and needs.
Whether these sentiments are developed in the direction of extreme
radicalism, or incline more to conservative thought, is not the
point. We hear on all sides that the evils of the existing social
order are due, in large measure, to the fact that within that order a
man is not in a position to use his full capacities. On the other
hand we hear that the social order must be so constituted that he can
satisfy his wants within its limits.
Here we are brought
back to two fundamental elements of human life. Capacities belong to
the human power of imagination; for since a man must act consciously,
his capacities in the first instance arise out of his power of
imagination, his thought-will. Of course, the power of imagination
must be continually fired and filled with enthusiasm, by feeling; but
feeling alone is powerless, if the fundamental imagination is absent.
Therefore, the question of a man's efficiency or practical skill
brings us in the last instance to the life of imagination. It became
evident to many persons that care must be taken. to enable a man to
realize in social life his power of imagination. The other element
which has to be allowed free play has more to do with the will in
man. Will power, which is connected with desire, the craving for
something or other, is a fundamental force in the human being. When
it is said that the human being must live within a social structure
that can satisfy his wants, it is the will which is under
consideration.
Thus, unknown to
themselves, even the Marxists, in advancing their social theories,
consider human beings while they profess to speak only of
institutions. They speak of institutions, but they would like to make
their institutions such that human ideas and human faculties find
scope within them, and that human needs can be satisfied for all
alike as they arise.
Now there is something
very peculiar in this view. It leaves quite out of account one
element of human life, and that is the life of feeling. If we put
forward a claim to build up a social edifice in which people can live
in accordance with their capacities, their feelings, and their needs,
then we are taking into consideration the whole man. But curiously
enough, although the Marxist theory enters into details as to social
aims, it very characteristically omits the life of feeling
altogether. And to omit feeling in the study of human nature is to
leave out all consideration of the actual conditions of equity in the
social organism. For conditions of equity can only develop in a
community of human beings in accordance with the feelings which have
been trained and refined. As people feel towards each other in
their mutual intercourse, so will be the system of public law.
And because of the omission of this vital element of feeling in the
consideration of the social question the problem of equity was
necessarily lost sight of. It is, however, essential that this matter
of law should be placed in the proper light. Of course we know that
law exists, but the desire exists also to represent it as a mere
dependent of the economic system.
In what manner is law
developed in a community? Attempts have often been made to give a
definition of law; but a satisfactory one has not yet been found.
Just as little has resulted from the attempt to trace the origin of
law, to discover whence it comes. A solution of this problem has been
sought in vain. Why is this so? It resembles what would result from
an effort to develop language out of human nature alone. It has often
been said, and rightly, that a person who grew up on a desert island
would never learn to speak; for speech is acquired through communion
with other beings within the whole human family.
Likewise, out of the
interchange of human feelings in public life the desire for law is
kindled. We cannot say that the feeling for justice suddenly awakens
in some particular part of the human being, or of the human race. We
may say that the feelings which human beings mutually develop in
their intercourse with one another bring them into certain
relationships, and as these relationships express themselves, laws
are established. Thus we discover law as a development within, and
out of, human society. Herewith we come right up against what has
developed in modern history as the demands of democracy. We cannot
understand the nature of the democratic demands unless we look at
human evolution itself as a kind of organism. But the modern method
of study is very, very far removed from this manner of considering
the question. No one would deny that it is reasonable to ask: What is
the cause of those forces in human nature which bring about the
change of teeth in the child about the seventh year? It is not
reasonable to look for the cause of this process in the kind of
nourishment the child is fed — whether it be beef or cabbage.
In like manner we must ask: What is the cause of the development in
the human organism which is manifested at the age of puberty? We must
look at the inner nature of that which develops. Search as you may
among the present-day modes of thought, you will find none which can
apply this method to the history of human evolution. None, for
instance, is clear on this point, namely, that in the course of the
development of humanity on earth certain powers and capacities,
certain attributes developed in the succeeding epochs of time out of
the inner nature of the human being himself. He who learns to study
Nature in accordance with her own laws can transfer this method of
observation to the study of history. If this method be followed, it
will be found that since the middle of the fifteenth century the
longing for democracy, more or less fulfilled in the various regions
of the earth, has been growing out of the depths of human nature.
This longing is expressed in the demand that in social life the
human being can recognize as valid for others only what he feels to
be right and best for himself. In modern times the democratic
principle has become the sign and seal of human social endeavor and
has grown out of the depths of human nature. The demand of modern
humanity for this principle of democracy is an elemental force. He
who has an insight into these matters must treat them with the
greatest seriousness. He must ask himself: What is the significance
and what are the limitations of the democratic principle? I have just
defined this principle. It consists in the fact that the persons
forming a definite social organism adopt resolutions approved by
every individual within the community. These resolutions, of course,
can only be binding if they are adopted by a majority. The content
of such majority resolutions is democratic only if every single
individual is on an equal basis with every other single
individual. And these resolutions can only be adopted on any
matter when every single individual is in reality the equal of every
other. That is, democratic resolutions can only be passed when
every adult is entitled to vote because he is an adult and therefore
capable of judging.
Herewith we have
defined the limitations of democracy as clearly as possible. On
the basis of democracy only such things can be determined as are
capable of determination through the fact that a person has reached
the years of discretion. All such things as are related to the
development of human capacity in public life are excluded from
democratic measures. Everything in the nature of education and
instruction, of cultural life in general, requires the devotion of
the individual human being — in the next lecture this will
be more fully dealt with — it demands, above all things,
real individual understanding of the human being, special individual
capacities in the teacher, in the educator, which by no means belong
to a person merely because he is an adult. We must either not
take democracy seriously, in which case we submit to its decisions
regarding human capacities, or we do take democracy seriously, and
then we must exclude from it the administration of the cultural life
and the economic life. Everything that I described yesterday in
regard to the economic sphere is based on the assumption that
individuals actively engaged in one or another special branch are
possessed of expert knowledge and efficiency. For instance, mere
maturity in age, the mere capacity of judgment possessed by every
adult, can never be sufficient qualification for a good farmer or a
good industrial worker. Hence, majority resolutions must be kept out
of the realm of economic life. And the same applies to the cultural
life. Thus there arises between these two realms the actual
democratic state-life in which every individual confronts every other
as competent to form a judgment, because he is of full age and all
are equal as human beings; but in which majority resolutions can be
carried only on matters dependent on the same capacity of judgment in
all adult persons. If we take the trouble to test the truth of these
things by the facts of life and not regard them as mere abstractions,
we shall see that people deceive themselves, because these are
difficult thoughts and because they have not the courage actually to
follow up these ideas to their logical conclusion. But the
unwillingness to do so and the substitution of very different things
for the universal demand of democracy have had, in the evolution of
modern humanity, a very concrete significance. I will exemplify these
matters from the historical evolution of mankind itself rather than
from abstract principles.
During recent years we
have witnessed the collapse of a State. We have seen it fall to
pieces of itself, we might say, and this State may really serve as an
object of experiment in regard to the question of rights and law. It
is the old Austria-Hungary, which no longer exists. Anyone who has
followed the events of recent war-years knows that at the end the
downfall of Austria was brought about by purely military events. But
the dissolution of the Austrian State, which followed in the second
place, was the result of its inner conditions. This State collapsed
and would probably have done so even had the military events in
Austria been more creditable. This may be said of the events in
Austria by one who has had the opportunity (I have spent thirty years
of my life in that country) of following consecutively for decades
the conditions there. It was in the ‘sixties’ of last
century that the demand for democracy, that is, for a representative
Government, arose in Austria. Now how was this representation of the
people composed? The representatives of the people in the Austrian
Imperial Parliament were recruited from four purely economic
sections: 1. The great landowners; 2. The towns, market and
industrial centers; 3. Chambers of Commerce; 4. Provincial Councils.
But in these last only economic interests were actually represented.
Therefore, according to the section to which one belonged, province,
or Chamber of Commerce, one voted for the representatives in the
Austrian Imperial Parliament. Thus representatives of purely economic
interests sat in that Parliament. The resolutions adopted by them
were, of course, arrived at by a majority of individual men, but
these individuals represented interests which arose out of their
identification with the great land-owning class, with the towns,
markets and industrial centers, with the Chambers of Commerce or the
Provincial Councils. What kind of public measures were adopted by the
decisions of a majority? They were legal measures, the result of
deliberations by nothing but economic interests in disguise; for
when, for instance, the Chambers of Commerce were unanimous with the
great landowners about anything that benefited them economically, a
majority could be found to vote against the interests of the
minority, who were, perhaps, just those most concerned in the matter.
When parliaments are composed of representatives of economic
interests, majorities can always be found to pass resolutions
affecting those interests and to make laws which have nothing
whatever to do with that feeling for justice which exists between one
man and another.
Or let us call to mind
that in the old German Imperial Parliament there is a great party,
calling itself the Center, representing purely cultural interests,
that is, Roman Catholic cultural interests. This party can join with
any other in order to gain a majority, and the result is that purely
cultural needs are satisfied by the enactment of public laws. It
happened countless numbers of times. This peculiarity of the modern
Parliament, which passes for a democratic institution, has often been
commented on; but no one has discovered how it might be altered,
namely, by a clear separation of political interests from all that is
concerned with the representation, the administration, of economic
interests. The impulse for the organization of the Threefold Order
must, therefore, demand in the most emphatic manner, the separation
of politics, and the groundwork of the law, from the administration
of economic affairs, of the economic circuit. Within the economic
circuit, as I explained yesterday, associations must be formed.
Representatives of the different occupations should meet; producer
and consumer should come together. The purely business operations and
measures which take place should be based upon contracts entered into
by the association. In the economic world everything should rest on
contracts, everything should depend upon mutual service rendered.
Corporations should carry on business with other corporations; expert
knowledge and efficiency in particular branches should have the
decisive voice. My opinion as a manufacturer, let us say, as to the
importance of my particular branch of industry in political life will
have no weight when the economic department is independent. I shall
have to be productive in my own branch, to enter into contracts with
the associations of other branches of industry and they will render
me reciprocal services. If I am able to get a return of services for
mine, I shall be in a position to carry on my work. An association of
efficiency will be formed by means of contract. These are the facts
of the case.
In the sphere of law
and equity, affairs will be differently arranged. In that domain of
life where one man meets another on equal terms, the only thing to be
considered is the making of laws which shall regulate the rights of
the public by the decisions of a majority. Of course, many will say:
‘What is really meant by public rights? It is neither more nor
less than the spirit, expressed in the words and put into the form of
laws, which animates the economic conditions.’ In many respects
this is true. But the idea of the Threefold Social Organism does not
leave this out of consideration; in fact, it leaves no reality out of
consideration. That which results as just and equitable from the
resolutions taken on the basis of the democratic State is introduced
into the economic sphere by those who are occupied in industry. But
it is not their work to initiate this spirit and to make laws. They
receive the law and carry it into operation in the economic life.
Abstract thinkers
raise objections to this Threefold Order. They say that in public
life, when one man does business with another, gives a draft to
another according to the law of exchange, the whole operation is
carried on within the limits of the economic sphere. They ask:
‘Is that not a complete unity?’ and say: ‘The idea
of the Threefold Order tries to break up what is already a complete
unity, as if there were not many spheres in life in which public
opinion is not allowed to function lest it work destructively, many
spheres in which forces from all sides meet and form a unity.’
Take the case of a young man. He has various hereditary qualities
which cling to him. Then he has other qualities which he has acquired
by education. His characteristics come to him from two sides,
inheritance and education. Now suppose he does something at fifteen
years of age; it cannot be said that such an action is isolated. His
action is a unity composed of the result of heredity and education.
There is unity in the action just because the forces come together
from two sides. Out of the realities of life arises the idea of the
Threefold Social Organism. Real unity comes into an economic
transaction only in proportion to the conceptions of justice it may
contain, through the independent administration of economic measures
from an economic standpoint, and through the making of laws by an
independent democratic equity state. These two elements are then
brought together into one whole. The two work as one. If, however,
laws are allowed to arise out of the interests of economic life
itself, the laws are turned into a caricature of justice. Law is then
like a photograph or an impression of economic interests. There is no
equity present. Only when laws are allowed to arise naturally, and
from the very beginning on their own independent democratic basis,
can they be introduced into economic life.
One might think that
this must be so obvious to all, that explanation were quite
unnecessary. But it is a peculiarity of this age that the most
transparent truths are overshadowed by modern life, and that it is
just those clearest facts that are most distorted. Many of the
socialist views advanced at the present time make the continuation of
the dependence of law on the economic life their basic principle. I
alluded yesterday to the idea of founding a kind of hierarchy on
political lines, according to which the economic life should be
governed and administered. In this scheme it is thought that those
who administer economic affairs will also, at the same time, develop
the laws. This assertion proves an absolute lack of understanding of
real life is not the economic system, in which efficiency above all
things is necessary to promote production, that can bring forth
suitable legal conditions; legal conditions must arise from their own
source, side by side with the economic life. Laws can never be the
outcome merely of thought. Side by side with the economic circuit
exists a political element in which every single individual meets
another on equal terms. The essential point is not that out of some
vague primitive consciousness a business man can evolve just laws,
but that the soil itself should be first prepared, so that human
beings might find themselves, through their feelings, in
circumstances which they would transform into circumstances governed
by law. The essential is to create a reality side by side with the
economic life. Law will then no longer be a mere superstructure above
the economic life; law will then take its place in a self-molding,
independent existence. Then the fundamental error of the social
question, the belief that the economic life need only be transformed
in order to attain to new conceptions of law, will no longer be met
by a theoretic answer. Then reality will be created in the Threefold
Social Organism by the preparation of an independent basis for
political life, reality by which, through human intercourse and
human relationship, the strong impetus towards a system of law and
equity arises, capable of keeping the economic life within its proper
limits.
Finally, a
consideration of our age from the historical point of view reveals
from another side in what manner all that I have said above can be
proved. Look back to the period before the thirteenth and fourteenth
centuries and think of the incentive given to the men of that period
in their handicraft and in all other work. Modern socialist thinkers
often emphasize the fact that the worker is separated from his means
of production. That this is so to such a high degree at present is
caused by modern economic conditions. Most of all he is separated
from his products. What part has the factory worker in all that the
manufacturer sells? What does he know about it? Often not even to
what part of the world it goes. His work is a small part of a great
complex, which perhaps he never sees as a whole. Think of the
tremendous difference between present conditions and the old
handicraft, when each man worked at his own product and took pleasure
in his work! Anyone who has studied history can testify to this.
Think of the personal relation between a workman and his handiwork,
such as a door-key, a lock, and so forth. In primitive regions of the
country we can still find this feeling of a man towards his work.
Where the customs are less simple, this is no longer possible.
Forgive me if I mention a personal experience, it is very
characteristic of what I mean. I once entered a barber's shop in an
out-of-the-way place and was truly happy to see the real pleasure
taken by the barber's assistant in cutting a customer's hair nicely.
His work was a real pleasure to him. There is, of course, always less
and less of this personal tie between the worker and his work. Its
absence is a condition of modern economic life, and it cannot be
otherwise in the complicated circumstances arising out of the
distribution of labor. If we had not the division of labor, however,
neither should we have our modern life with all that is necessary to
us. There would be no progress. The old connection between the
workman and his work is no longer possible. But man needs a
relationship to his work; it is necessary that he should feel joy in
his work, that he should feel a certain devotion to it. The old
devotion, the immediate companionship with the thing he has made,
exists no longer; yet it must be replaced by something else. What can
this be? It can only be replaced by enlarging men's horizon, by
raising them to a level on which they can come together with their
fellow-men in one great circle, eventually with all their fellow-men
within the same social organism as themselves, in which they can
develop an interest in man as man. It must come to pass that even the
man who is working in the most remote corner at a single screw for
some great machine need not put his whole self into the contemplation
of the screw, but it must come about that he can carry into his
workshop the feelings which he entertains for his fellow-men, that
when he leaves his workshop he finds the same feelings, that he has a
living insight into his connection with human society, that he can
work even without actual pleasure in his production, because he feels
he is a worthy member in the circle of his fellow-men. Out of this
impulse has sprung the modern demand for democracy and the new way of
establishing public law on democratic lines. These things are related
by their inner nature to the evolution of man. Only he who has the
will to look deeply into the realities of human evolution in its
progress in social life can really understand such things. The
feeling must arise within us that the horizon of human beings must be
enlarged, that men ought to be able to express their feelings with
regard to their work in words somewhat like these: ‘It is true,
I have no idea how my work in making this screw will affect my
fellow-men; but I do know that, through the living ties which bind me
to them by a common law, I am a worthy member in the social order,
and have equal rights with other men.’
This is the principle
which must lie at the root of modern democracy, and it must work in
the feelings of one man towards another as the fundamental principle
of the modern public legal code. Only by understanding the inner
nature of the human being can we arrive at really modern conceptions
of that common law which must now be developed everywhere. Details
will be given on this head in the fifth lecture. In conclusion, I
will now show how the sphere of justice passes over from the actual
department of equity into that of cultural life.
We can see how laws
arise on the basis of the democratic state by the refining of
feelings among individuals with equal rights; while in the economic
sphere of life, contracts are entered into between societies or
between individuals. From the moment in which the individual finds
himself in a position to seek justice under either civil or penal
law, or in a private, or in any other manner, in that moment the
decision passes from the purely legal to the cultural domain. Here is
another point, similar to that discussed yesterday in dealing with
taxation, which will present difficulties. It will take long for
modern thinkers to accustom themselves to ideas which would
demonstrate their self-evidence, if only their underlying conditions
were examined.
Now when a case arises
in which it has to he decided how an existing law can be applied to a
particular person, we have to do with the exercise of an individual
judgment. It must be determined whether the elected judge is really
qualified by his mental and spiritual capacities to understand the
person in question. Administration of punishment, civil justice,
cannot rest on the general basis of law. It must be removed to
another sphere, the special characteristics of which I will explain
in my next lecture on the cultural life. Justice can only he
administered when the judge is really able, by virtue of his own
capacities, and out of the relationship between himself and the
person whom he is trying, to give a verdict out of his own
independent capacity of judging. One might perhaps think that this
objective could be gained in various ways. In my book, The
Threefold Commonwealth, I have pointed out one way in which it
might be attained. In the Threefold Social Organism there is (a) the
independent economic organization described yesterday; (b) the
democratic political foundation which I have sketched today, and
which I will develop more fully in my fifth lecture in regard to its
interplay with the other members of the organism. But there is also
(c) the independent cultural life which controls, above all things,
teaching and education as I pointed out yesterday and which I will
amplify in my next lecture. Those who control the cultural sphere
will be called upon at the same time to appoint the judges; and every
human being will be entitled and able to elect from time to time his
own judge, should he find himself accused of an offence against civil
or penal law. Thus the accused will be able, out of actual specific
conditions, to appoint his own judge, and the judge, who will be no
bureaucratic lawyer, but a man chosen out of the cultural sphere,
through the circumstances in which he is placed in the social
environment will be able out of his environment to determine what
judgment he must form of the man whom he is to try. It will be
important that no judge shall be nominated for political reasons.
The reasons for his nomination will be like those which determine the
nomination of the best teacher to a particular post. Becoming a judge
will be something like becoming a teacher or an educator. Of course,
in this way the judicial finding will differ from that laid down by
the law which arises from a democratic foundation. By the example of
penal law already cited, we see how the personal disposition of the
individual human being is outside the sphere of democracy and can
only be judged in an individual way. The framing of laws is
eminently a social matter. The moment we apply to a judge it is
probably because we are concerned, either in a super-social or an
anti-social matter, in. a matter which has fallen out of the social
life. All individual interests are of this nature. Such cases fall
under the administrative branches of the cultural body. The decisions
of justice grow beyond and above the limits of democracy. (See:
Appendix VI)
So we see that what we
have to do is to establish in reality conditions under which a
genuine system of law can exist among men. Justice will then be no
mere superstructure of the economic body; but equity will control
economic life. We shall never succeed in doing what is necessary in
this domain of life by a merely theoretical examination of the
circumstances. It can be done in no other way than by a practical
observation of life. This will give us the knowledge that a true
system of justice with the necessary impetus can only arise on an
independent foundation of law. This foundation has disappeared
beneath the inundating flood of economic life. Politics and law have
become dependent on the economic life, but they must regain their
independence, just as cultural life must also be emancipated from the
economic system. In order to see clearly in the social question, the
great error must be overcome — the great error: that we need
only revolutionize economic conditions and then everything will
follow automatically. That error has arisen in consequence of the
all-powerful modern development of economic life alone. It is as if
people were under the influence of an idea, as if they were under the
suggestion that the economic life is the only power. As long as this
suggestion holds sway they will never find the solution of the social
problem. They will give themselves up to illusions, especially in
proletarian circles. They will try to extract from the economic
system what they call a just distribution of property. But this will
only be effected when there are men in the social organism possessing
the ability to promote institutions through which the economic needs
can be satisfied. That can only happen when it is understood that
the revolutionizing of the economic system is not the only thing
necessary to satisfy the requirements of social life. People must
first answer the question: Must not something else be there alongside
the economic body in order that the economic life may be built up
continuously in a social manner by men who have grown social in
political and in cultural life? This is the truth which we must
oppose to error and dogma; and those who look to the economic life
for the means of restoring health to the social organism must look
instead to the spirit and to justice. There must be no vague
dreams of justice growing out of the economic system; we must
cultivate right thought in accordance with realities, and we must do
so because justice and the consciousness of justice have retreated in
later times before the advancing economic flood. For a social
construction of society, we need the creation of a genuine political
organism with the social impetus necessary for it.
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