« PreviousContinue »
culating the path of least resistance for a mighty body moving swiftly amidst obstacles, and supposing, also, that moving body to be one for whose safety their profession fixed upon them a responsibility peculiarly their own.
BROOKS ADAMS. BOSTON, Mass.
TOLSTOY'S DOCTRINE OF LAW.
An important subject of which Tolstoy very often treats in his social writings is law. His doctrine of law greatly differs from the teaching of Plato, Aristotle, Montesquieu, Grotius, Hobbes, and of modern jurists as Bentham, Austin, Jellinek,: Jhering,' and Kohler.10 He recognizes only divine or eternal laws but not the human. “The human or the written laws are not just; they are capricious and artificial; Jesus Christ nullifies them, and confirms only the eternal laws.'11 Recognizing the eternal or natural laws Tolstoy does not acknowledge the canonical, because these are false, full of contradictions and sophisms, just as the secular laws are. By eternal laws he means laws written in the hearts of men, not prescribed by any authority, sovereign, or legislature. “Since all men are brothers and equal among themselves, everybody must act toward others as he wishes that others should toward him.'12 In that case the written laws are not necessary. This may be true. But if people do not think they are brothers, and equal, and if they are really homo homini
i Laws. The Dialogues of Plato, English, by B. Jowett, Vol. V, Lon don, 1892.
2 Aristotle's Politics, books I-IV, English, by B. Jowett, Oxford, 1908.
3 De L'Esprit des Lois, English, by T. Nugent, London, 1905-6.
4 De Jure Belli ac Pacis, English, by A. C. Campbell, London, 1901.
5 Leviathan, The English Works of T. Hobbes, Vol. III, London, 1839.
6 The Works of J. Bentham, Vol. I, II, Edinburgh, 1843.
Lectures on Jurisprudence, New York, 1875.
8 Das Recht des Modernen Staates, Berlin, 1905.
9 Der Kampf um's Recht, Wien, 1900; Der Zweck im Recht, Leipzig, 1893-98.
10 Einfuehrung in die Rechtswissenschaft, Leipzig, 1905.
11 My Religion, chap. V. (Wiener's ed., p. 49.)
12 What is Religion? chap. XI. (Wiener's ed., p. 106.)
deus, et homo homini lupus, as Hobbes explains it,1what 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, 14 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. '16 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.
18 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, or 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
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.)