Page images
PDF
EPUB

deus, et homo homini lupus, as Hobbes explains it," what must they do to protect each other? In Tolstoy's Works, it is very difficult to find an answer to this question. Our reformer takes it a priori, as Rousseau does,1 that man is born good by nature, but society with its written laws and other institutions, makes him corrupt and wicked. He does not think, as Machiavelli, that "Men are ungrateful, fickle, false, cowards, and covetous. ''15

The great thinkers, Plato, Aristotle, Montesquieu, and Hobbes, treated man somewhat as a kind of animal, swayed by passion, pleasure, and pain. Under such psychological conditions, he is often bent to do evil to his fellow-men. This applies not only to the common people but to their rulers also. If kings, capitalists, and legislators are inclined by their nature, by ambition, pride, or idleness, to do wrong, how can we bridle their power and despotism? Is not law the means? "In the state of nature," says Montesquieu, "All men are born equal; but they cannot continue in this equality; society makes them lose it and they recover it only by the protection of laws."" In the science

of jurisprudence the necessity of positive laws is sufficiently explained. Their object is to protect the interests of society in application to property and conduct. If they are perverse and cross the interests of society, they lose their authority and men are right to change them. It is proved that civilized society never was without some kind of laws. If they were not in the form in which we possess them today (lex scripta), they were in the form of general custom (lex non scripta). Did not the ancient nations have the laws written on Egyptian papyri or on some other materials? Who does not know today the celebrated Code of Khammurabi dating from 2285 B. C.? Who does not recall

14 In his Emile and Social Contract.

15 The Prince, chap. XVII.

16 De L'Esprit des Lois, liv. VIII, chap. III.

13 De Cive, Opera Philosophica, Vol. II, Edinburgh, 1843, p. 135.

the laws of Manu, the first Indian legislator, or the laws of Confucius, Moses, Lycurgus, Draco, Solon, and Justinian? Tolstoy starts from the point of view that all these ancient laws were imposed upon the people, especially the laws of Moses, and that present enactments are also imposed on people by force, therefore men ought not to recognize them.

"It was all very well," continues our author, "for a Jew to submit to his laws, when he had no doubt but that they were written by God's finger; or for a Roman, when he thought that the nymph Egeria had written his laws; or even when they believed that the kings who gave the laws were the anointed of the Lord, òr even that the legislative bodies had a desire to find the best laws, and were able to do so. But we know how laws are made; we have all been behind the scenes; we all know that laws are the results of greed, deception, the struggle of parties,-that in them there is and there can be no true justice."

It is superfluous to prove that in human laws there cannot be perfect justice, but that present-day society can exist without laws is a question open to dispute.

Only in an ideal "state of nature," could people live without laws, and without legal institutions. Only in such a state rules perfect and absolute freedom. Everybody could do as he pleases, because everybody is by nature good and happy. But, unfortunately, such a "golden age" and "state of nature" are only fictions of the poets and philosophers.18 Modern sciences, Archaeology and Anthropology, deny this hypothesis and say that such a primaevus naturae status, virtually never existed. If anything existed in remote times, concerning men, it was a state of society, and not a "state of nature." The essential char

17 The Kingdom of God is Within You, chap. V. (Wiener's ed., p. 125.)

18 David Hume, quoted by J. Bonar in Philosophy and Political Economy, chap. IX, London, 1893, p. 186.

acteristic of human beings is, then, progress and not regress.19

II.

Speaking on the subject of laws and other institutions related to them, courts, legislatures, police and army, Tolstoy is a great idealist. His interpretation of positive laws is not positive, it is not scientific. When one reads his artistic explanations of laws, he might "long to walk on all fours." However, to comprehend justly the great Russian radical we must know that he lived in an autocratic state, in a tsardom, in which all laws were sanctioned and executed at that time by the emperor and his priests, partisans, and many bureaucratic servitors, so-called chinovniki, whose power consisted of club and rod. Surrounded by a nihilistic literature on the one hand, and on the other by the venal and sordid functionaries he was compelled by his generous spirit to write in this manner, and to deny the written laws.

Instead of written law Tolstoy substitutes the supreme law of love, fraternity and equal opportunity. These principles are expressed in Jesus' teaching, in the ideal teaching of Jesus, which is quite different from the Christianity of the dark ages. In many of his eloquent treatises, we see that he was trying to interpret the doctrine of the great Nazarene idealistically and impartially, without any theological prejudice. Tolstoy was an independent man. He wrote what he felt, caring not what pedants might say of his social theories. His knowledge of many juridical systems and technicalities of law is not complete and perfect, indeed. But he was a righteous man, and always sacrificed the formalities to the essential things of moral laws.

19 "Society is impossible without some government," says Prof. Ward, "and is more perfect, the more law and order are assured and stable." (Naturalism and Agnosticism, by

James Ward, London, 1903, Vol. II, p. 248.) Vide also: J. Bentham, A Fragment on Government, chap. I. (The Works of J. Bentham, Edin. burgh, 1843, p. 261 seq.)

To him laws are written in reason and heart, not in books. His critics say that such negation of written laws and idealistic doctrine "Return to Nature," would lead men into a state of barbarism. They say that according to Tolstoy's and Rousseau's teaching, man would live like the beast in the forest or the fish in the water. This criticism is not valid. When Tolstoy denies positive laws and Russian judicial institutions, he premises the higher moral and intellectual development of nation and society in all. He sees the ignorance and immorality of many people, but they must not be blamed on account of these weaknesses. It is not their fault that they are such men. We rather must condemn our erroneous educational system, and our political machinery, whose fault it is that they are not better instructed and educated.

III.

This doctrine of Tolstoy could be endorsed even by Hobbes, who, we know, was in favor of conservative rule, and one of the most vigorous supporters of monarchical principles in the seventeenth century. In his Leviathan (part II, ch. 30) Hobbes says: "The punishment of the leaders and teachers in a commotion, not the poor seduced people, when they are punished, can profit the common: wealth by their example; to be severe to the people is to punish that ignorance, which may in great part be imputed to the sovereign whose fault it was, that they were no better instructed." When Hobbes, the "grand hedonist" and "propagator of despotism" speaks so compassionately of the people, what remains for Tolstoy, the "greatest altruist" and "propagator of fraternity" to speak of them?

Tolstoy's ultra-radical theories could not be explicable in a state with a republican or democratic form of government. But in Russia where Duma and Zemstvos (County Councils) were at Tolstoy's time sheer perversions of the legislative will of the people; where constitutional govern

ment in fact was a bitter mockery; and where a monarchical system through its inefficiency and corruption, was a real terror for the majority of the nation,-in such a state Tolstoy's teaching on law is quite explicable, if not excusable. MILIVOY S. STANOYEVICH.

BERKELEY, CALIFORNIA.

« PreviousContinue »