Introduction

Benedetto Croce (Pescasseroli 1866–Naples 1952) was a philosopher, historian, and literary critic and a prominent figure in Italian cultural and political life in the first half of the twentieth century whose thought had a significant international echo.

Born in Pescasseroli to Pasquale and Luisa Sipari, Croce spent the early years of his education in Naples. In the summer of 1883, while on holiday with his family on the island of Ischia, he lost his parents and his sister, Maria, in the tragic earthquake of Casamicciola. Now orphaned, he was entrusted, along with his younger brother, Alfonso, to the care of his father’s cousin, Silvio Spaventa (1822–1893), a jurist and leading figure in the Italian Conservative Party (Destra storica).

After moving to Rome, Croce complied with his uncle’s wishes, enrolling in the faculty of law, where he began to attend university courses, without, however, developing a real interest in legal studies. Already in this early period he began to formulate his first critical thoughts regarding both the conceptual abstractions elaborated by legal science and the nature of law, which he saw as clearly distinguished from morality and as bearing a close affinity to politics (Intorno alla mia teoria del diritto, p. 82ff.). In these difficult years, he found stimulus in the acquaintance he made with Antonio Labriola (1843–1904), whose lectures in moral philosophy he began to attend regularly, dedicating most of his intellectual energies to them.

Upon leaving university, Croce returned to Naples, in 1886, and decided to devote his life to his studies – but did so always remaining a stranger to academia. He was diverted from his early erudite and literary investigations, first by philosophical meditations on the nature of history and science, which in 1893 culminated with the publication of his essay La storia ridotta sotto il concetto generale dell’arte, and then by the study of economics and the materialistic conception of history, from which derived the essays collected in 1900 in the book Materialismo storico ed economia marxistica. Reprising his own reflections on art, in dialogue with the ideas of Francesco De Sanctis (1817–1883), he began to design a vast theoretical and historical work dedicated to aesthetics. A turning point in his thought came with the publication, in the spring of 1902, of Estetica come scienza dell’espressione e linguistica generale: it was with this book that he began to develop his own philosophical system. These were also the years that mark the beginning of his intellectual partnership with Giovanni Gentile (1875–1944). With support from Gentile, in the summer of 1902, Croce drew up the program for La Critica, the journal of history, literature, and philosophy he would go on to edit (and mostly contribute to) for over 40 years starting in 1903. His “Philosophy of the spirit” would develop into a system made up of four parts: the first resulting in the third edition of Estetica (1908), the second in the second edition of Logica come scienza del concetto puro (1909), the third in Filosofia della pratica: Economica ed etica (1909), and the fourth in Teoria e storia della storiografia (1917). Decisive in shaping this work was Croce’s relationship to Hegel and Vico, the two philosophers who most influenced his thought: this led to his 1906 essay Ciò che è vivo e ciò che è morto della filosofia di Hegel and to the 1911 book La filosofia di Giambattista Vico.

In January 1910, when he joined the senate of the Kingdom of Italy, Croce began an important period of political commitment which culminated in his appointment, in June of 1920, as minister of education, in the fifth and last cabinet of Giovanni Giolitti (1842–1928). In the heated political controversy that erupted during the First World War, he took part in the public debate by siding initially against the most fervent supporters of Italy’s intervention in the conflict and then against those scholars who, under the pretext of war, had succumbed to idleness or, worse still, had taken to manipulating the truth to make it a slave to the interests of their country.

Politics never distracted Croce from his studies, which he constantly pursued with firm commitment, even in the difficult years of Fascism, which, after some early hesitation, he opposed with moral and intellectual rectitude. After the break with Gentile, when an irreducible political rift compounded the philosophical disagreement between the two scholars, during the period of isolation in which the regime tried to sideline him, Croce wrote his main historical works: Storia del Regno di Napoli (1925), Storia d’Italia dal 1871 al 1915 (1928), and Storia d’Europa nel secolo decimonono (1932) – three works united by the aim of reawakening the idea and value of freedom in the spirit of his countrymen. These books were received with great interest by readers and were thus a publishing success. These were followed, in close succession, by the two fundamental works La poesia (1936) and La storia come pensiero e come azione (1938), testifying to the deep rethinking of the essential cores of the “Philosophy of the spirit,” which, while departing from the original form of a treatise, nonetheless preserved its unitary and systematic character.

After the Second World War, Croce came back to the center of the public stage, and beginning in the summer of 1943 his commitment to politics took up a large part of his life. He collaborated in rebuilding the Italian Liberal Party, of which he became president in 1944, and took part in the reconstruction of the democratic state, with an active involvement in its institutions: as minister without portfolio, in 1944, in the cabinet led by Ivanoe Bonomi (1873–1951); as member of the National Council (Consulta Nazionale), from September 1945; as elected member of the Constituent Assembly (Assemblea Costituente), in June 1946; and as senator in the first legislature of the republic, a post to which he was appointed in May 1948. Even during this period, Croce managed to be active in both politics and his studies. The radical crisis of European civilization, a consequence of the tragic war and of the unsolved postwar restlessness, prompted him to meditate on the dialectical relationship between “vitality” and “civilization” – a dramatic opposition, which, threatening to break up the spiritual unity of reality, forced him to return to Hegel, resuming with the German philosopher a dialogue that in truth had never been interrupted. This culminated in his book Indagini su Hegel, published in 1952, shortly before his death.

The Object and History of the Philosophy of Law

Juridical activity does not constitute an autonomous category in the structure of Croce’s philosophical system; it rather represents a practical experience to be resolved in the wider sphere of economics, and as such distinct from, but related to, ethics. Nevertheless, his ideas on law and the philosophy of law grew to maturity in the process of developing the “Philosophy of the spirit,” in the early 1900s, and reached its climax with two works – Riduzione della filosofia del diritto alla filosofia dell’economia (1907) and Filosofia della pratica (1909) – written within a few years of each other.

It is in the first pages of Riduzione that Croce treats the question of the object and history of the philosophy of law. According to him, scholars had been overly committed to defending the epistemological autonomy of the philosophy of law relative to universal history, to general theory, or to ancient natural law. For this reason, they generally paid little attention to the particular problem, proper to the discipline, of the nature of law. This real nature of law remained obscure, according to Croce, given the inability to distinguish juridical activity from ethics. Borrowing a significant metaphor from Rudolf von Jhering (1818–1892), Croce characterized this unsolved problem as the “Cape Horn” of the philosophy of law, which marked its entire history: certainly, according to him, this was a very recent history, its origins going back no earlier than the end of the seventeenth century. Until that time, there was no philosophy of law proper to speak of – whether in relation to the noble tradition of theories of justice, within which the law would have been entirely absorbed by ethics, or in relation to the opposite doctrines of force or utility, within which ethics itself was denied in its own consistency.

The problem of distinction between juridical activity and ethics had to wait until Christianus Thomasius (1655–1728), who in his Fundamenta iuris naturae et gentium (1705) developed the first systematic account of the relationship between honestum, decorum, and justum. From this moment on, the idea of a peculiar trait by which to distinguish law from morality – the idea of a purely juridical form irreducible to the ethical one – would be rooted in modern philosophical consciousness. This was an important development, to be sure, but one that Croce still considered unsatisfactory, given that philosophical thought is fundamentally inimical to empirical concepts such as “exteriority” and “coaction,” through which this distinctive trait has been identified over time. The inability to solve this problem and, at the same time, the impossibility of setting it aside engendered the basic contradiction of legal philosophy: “law does not seem identical to ethics, but neither does it seem simply different from it; it seems to be both identical and different, yet the element of diversity cannot be fixed in the concepts of exterior, coactive, and the like” (Riduzione, p. 32).

According to Croce, this “morbid condition,” which was to plague legal philosophy for about two centuries, is a consequence of the failure to elaborate the category of the “economic” as the first form of practical activity and to recognize “utility” as an autonomous principle in the life of the spirit. From this there emerged the guidepost showing the path to be followed: assuming the unity of spiritual forms, distinct but not separate from each other, the problem is framed starting from the determination of the concept of law.

The Concept of Law

As early as 1902, in Estetica, in the eighth chapter, dedicated to the system’s conceptual structure, Croce excludes that next to the aesthetic, logical, economic, and ethical forms, there may be a fifth, autonomous form of human activity – an argument he makes reasoning by specific reference to the example of “juridical activity.” However, the question of the nature of law isn’t dealt with in its proper meaning until his 1907 Riduzione.

“Is the law a pure economic activity,” Croce asks, “or is it a moral activity?” (Riduzione, p. 38). The very formulation of the question excludes the possibility that law belongs, not to the domain of the practical spirit, but to that of the theoretical spirit, to the sphere of human cognitive activity. It therefore excludes the possibility that the juridical can be said to be a particular and further determination of practical activity, as different from economics as it is from ethics, since this division, coinciding with that of the individual and the universal, leaves no room for any third form. Otherwise, the elaboration of an answer begins from the recognition of the “amoral” character of law, from the awareness that juridical action, considered in itself, is a practical activity that is neither moral nor immoral; it finally verifies the perfect identity of juridical activity with economic activity, the “action of the individual among the actions of other individuals,” the “first condition of any moral or immoral activity” (Riduzione, p. 41, 45).

Having verified this identity, law and morality would therefore be both distinct and united. Juridical (or economic) activity, the activity of the individual, can also be separated from ethics, without thereby becoming unlawful (or uneconomic). Ethics, on the other hand, the activity of the universal, is inclined to make every individual action its own means and thus to conform the whole of human life to itself, since the moral intention always turns into practical action, by necessity expressing itself in a juridical (or economic) form (Riduzione, p. 53). To those who are startled by the affirmation of the unethical nature of juridical activity, and who refuse to admit the existence of immoral juridical facts and to recognize that immorality does not deprive them of their own consistency, Croce replies, in the most eloquent way, in a page in the note on international law published in the summer of 1916, in the middle of the First World War, and incorporated in 1919 in the volume Pagine sulla guerra: “if morality is powerless to make the law not be law (as it cannot make art not be art), it is, however, very powerful in forming conscience and the will, and in proposing moral needs that continuously operate in the history of law, although in it such needs must of necessity always take the form of law, strength, utility: which is precisely what is called the moral progress of humankind” (A proposito del diritto internazionale, p. 120).

Juridical Actions and Laws

Croce holds that once we set aside arbitrary representations, which would prevent the identification of law with the economy and produce spurious distinctions between juridical and economic facts, it must be recognized that there exists a genuine trait marking out juridical actions and laws as different.

In Riduzione, he hastens to point out that this difference does not concern the essence of the juridical fact (Riduzione, p. 49). Then, in the 1908 Obiezioni intorno alla mia teoria del diritto, he confirms that in order to distinguish between law and morality, it is necessary to refer to two irreducible forms of spiritual activity. It is therefore appropriate to consider law in the primary and simple form of individual acts, not in the secondary and complex form of the laws; in fact, contributing to the production of laws are both a theoretical work of abstraction and the practical act by which it is ordered that individuals must henceforth, in the acts they do, conform to the abstract models thus set out (Obiezioni, p. 71ff.). Even so, in Croce’s assessment, the problem of the laws remains unsolved: having briefly but accurately examined it in Riduzione, he dedicates to it the entire third part of Filosofia della pratica.

The first aspect of the problem concerns the ambiguity of the law, described as “a volitional act which as its content has a series or class of actions”: as an abstract volition of the abstract, the law is therefore taken to be an “unreal” volitional act. The second aspect of the problem, then, concerns the relationship between this “pretended volition,” contradictory and imperfect, and the determined volition of the single act, the real volition in view of which the law – by its nature impossible to be carried out, impossible to be applied to the concrete case – performs a “preparatory” and “aiding” function (Filosofia della pratica, p. 317, 337f., 343ff.).

Behind these pages, open to objection but nevertheless fascinating, it is possible to observe the problem of the freedom of individual action, which must come to terms with the need for social order in the dialectic between practical activity and the laws that govern it. It is also possible to descry, in the background, the disturbing hypothesis according to which the concept of “design” proposed for action and carried out by its means – a concept which has no place in the fields of the economy and ethics, but which has its legitimate meaning in the field of the laws – sheds a ray of light on a specific and distinctive character of law, beyond its determination as pure economy.

The Double Aspect of the Practical Problem

According to Croce, although Thomasius had correctly framed the problem of the philosophy of law – concerning the nature of law and its relation to morality – this was not a problem that could properly be solved until the economy was elevated to a philosophical science and situated close to ethics. From this perspective, the entire history of the philosophy of law had therefore been a history of failures, of inevitable shipwrecks at “Cape Horn.”

On the other hand, as he observes, the stubborn search for a solution would have contributed importantly to the recognition of the double aspect of the practical problem, considering that over the course of this investigation, the need for a philosophy of the not-yet-ethical (aetica), or premoral (premorale), form of the practical spirit would be affirmed and progressively consolidated in the modern philosophical conscience (Riduzione, p. 37). The history of the distinction of law from morality, then, would have had an importance even greater than the experience of the emancipation of legal philosophy, since it concerned the whole domain of the practical spirit (Filosofia della pratica, p. 366). This would ultimately be the historical merit of the philosopher of law, his precious contribution to the philosophical thought of modernity.

Cross References