« PreviousContinue »
so far as it has relations with the activities of others; it does not regulate the conduct of the individual uti singulus, but only of the socius. Every predicate that is juridical is, therefore, trans-subjective and two-sided, implying a condition of alterity, a limit and relation between a multiplicity of people. This relation, however various may be the contents of it, has always the formal consequence that what is recognized as permitted on one side cannot be prevented by the other. Legality is similarly an effective claim of respect, to which corresponds an analogous obligation; and upon this rigorous correspondence between the terms of the relation its legal nature depends.
Any proposition which satisfies this formula, that is, the existence of such an inter-subjective relation, has without doubt the character of Right. Whence results the identity, and, at the same time, the changeableness of Right; since infinite propositions are possible according to the same logical species, as history itself, in almost continuous examples, makes evident. But not all juridical propositions have been historically verified, and those which have been verified with one people, have not always been verified with others; those which ruled in a certain age frequently fell away in a following epoch. Positivity is then an episode that may take place, and will certainly take place, in respect of juridical ideas which so far have not been effected; while many which at present are in force will come to an end.
To consider as a right only what seems “positive” to us would lead us logically to deny the juridical character of all the systems that have not reached such an empirical phase, or that have passed it. For that matter (for instance) in so far as the Right created by Roman law has ceased to be “ positive,” so far would it have ceased to be Right! Again, the nature of juridical rules (for instance, projects of laws) that are being elaborated in place of, or in addition to those in force, would be misconceived; and they would be ascribed to some other indeterminate category, until the instant of their appearance in actual force. In short, one would arrive at the absurdity of making the intrinsic sense of a maxim depend upon the extrinsic and accidental fact of its approbation and observance.
Those who accept the doctrine of the essentially positive
character of Right are accustomed to point out this charac. teristic as a criterion of distinction between Right and morals. But it is exactly this application of the doctrine, which, if it were true, would have supreme importance, which shews instead its irremediable want of foundation. Because morals themselves have also a historical and positive existence; and the problem, whether they have this existence alone or have also a metempirical character, arises in their case not less than in that of Right. He who affirms—for example, with Ahrens—that morality is absolute and invariable, but Right relative to time and place, commits, in our opinion, a twofold error; since, on the one side, he forgets that the principle of historical relativeness is applicable to moral, in the same manner as to juridical, phenomenology, and, on the other hand, disregards the fact that a moral absolute is not possible without a corresponding juridical absolute. That all Peoples have their own “positive morality” in harmony with their own system of Right, and therefore, subject to an analogous development, is a truth which stands in no need of demonstration, especially after modern investigations into this subject. In reality, both kinds of determination have a meeting ground, and are compounded into a concrete ethical organism or regulating system, which is precisely the product and the historical exponent of the predominating convictions regarding modes and ends of conduct. The rules of both the one and the other species have, however, differing characters, inasmuch as they correspond to the two fundamental points of view according to which conduct is capable of being regarded. Right concerns, as we have said, the objective ordering of activities, and affirms itself where a collision between the actions of several persons is possible, marking the limits of their respective effective claims. But morality furnishes a rule in another sense, and tends to resolve the clashing between two different actions which one and the same person can carry out. Moral precepts are therefore subjective or one-sided, since, even if they have also a relation to other persons, they really determine only the conduct of him who ought to execute them; while juridical precepts are essentially objective or two-sided, because they signify always a correlative determination of the conduct of a multiplicity of persons. From this different logical nature of the one and the other category, follows the difference which we find in their expressions and sanctions; that is, in the varying manner in which the juridical and the moral rules make their force felt, even when it is in the same manner that they are recognized and observed. Such difference cannot, however, prevent us from recognizing that there is in every human society a morality in force, which reveals itself in custom, and is historical and relative, like the Right which springs from and is developed along with it.
No distinctive criterion is then afforded by the mere fact of “positiveness,” unless from that we ascend to the intrinsic meaning of the rules set or followed. Considering this meaning, we perceive that Right and morality have, although each in its own way, a mode of existing—or rather of appearing—in the sphere of experience; but in themselves, as forms of evaluation of work, they are both ranked above this sphere, and denote a duty to be a deontological exigency. Thus, then, both morality and Right express, if at different visual angles, an ideal of conduct that can be violated physically, without on that account ceasing to have its value as ideal.
No one doubts that, in a given system, the legal rule remains such, whether in fact infringed by some or not. The transgression falls logically under the rule, and does not destroy it; right violated withdraws itself from the action of violence—Rosmini has well remarked—like an immortal existence, inaccessible to all material power, which does not succeed as much as in touching it. In this hyperphenomenal value resides properly the truth of Right, which, analogously to that of morality, does not depend on facts, but rather tends to impose itself on them; whence neither can it be limited by the institutions actually in vigour, of whatever kind they may be; rather it sets its affirmations naturally be: yond these, and sometimes against them. This same positive Right, inasmuch as it represents a reality of fact, is subjected to an evaluation sub specie juris. that is, it is liable to be referred to a criterion of justice, independent of every his. torical sanction. This criterion persists in the human conscience, and is one and uniform in its principles, on which it proceeds gradually to unfold itself. Though the juridical vocation of the conscience is reflected in the institutions which succeed each other in history, still it is not exhausted. Nay, the development of these institutions would not be possible if no new Right could ever be opposed to that al. ready established; that is, there would not exist that natural jurisdiction which the conscience exercises in an autonomous fashion on the objects already contemplated by the judicial and positive arrangements, and, therefore, on those arrangements themselves. The antithesis between the natural and the positive Right, between the Phusei dikaion and the nomo or Theoei dikaion on which the classical philosophy of Right is in all its developments concentrated, expresses exactly this fundamental law of our being, this necessity of a refraction of the absolute in the relative. It has been in vain attempted to eliminate the antithesis, dogmatically denying its first term, or ending in its confusion with the second. The exigency of natural Right persists, notwithstanding the denials of positivists and the attentuations of equivocal “historism;” it persists, in spite of the much more harmful errors of the very persons who advocate it with an inadequate apparatus or by improper methods. Natural Right exists, that is, it is valid, because the human being exists and must be reckoned with, whose inseparable attribute it is; and its determinations are drawn simply from the examination of human nature itself, which reason can perfect, bending back upon itself:
“er ratiocinatione animi tranquilli,” to repeat the formula of .
The dogma of the essential “positivity” of Right is thus dissolved by criticism. We see that “positivity" is nothing else than a transient and superficial image of a more profound truth. The analysis of the process which leads to the imparting on the stage of history of a “positive ’’ quality to Right, obliging us as it does to recognize in the process itself only a “consecutivum ”—a purely secondary result— in respect of the idea that is thus rendered positive, confirms in an indirect but undeniable manner, the legitimacy of the deduction of pure Right as an ideal conception.
GEORGE DEL VECCHIO.
DETECTION AND PROOF OF FORGERY.
Detection and proof of forgery in handwriting are best accomplished by comparing the alleged forgery, say of a signature, with a number of signatures that are admittedly genuine. The handwriting of an individual is as much a part of his identity as are the features of his face, his voice, his walk and carriage. Without an effort that is strained and unnatural, and therefore easily detected, a man cannot counterfeit the features, the voice or walk and carriage of another. So it is with handwriting; the movement of the arm and fingers that produces the writing of an individual is as unconsciously performed as is the movement of the legs in walking ; thus use breeds a habit that becomes so confirmed that the man's walk and handwriting are his alone and are so recognized.
When considering a case of alleged forgery, bear in mind the facts above stated and the principles they imply, and if you are accustomed to receive and deal with the correspond. ence of many people, you are competent to give valuable evidence in a Court of Justice on a charge of forgery. There are two things to do:
1st. Become familiar with the genuine signature as a whole and it will be in the mind, through the eye, as distinct as any other personal characteristic of the person could be, and wherever the signature is seen, on a cheque, on a draft, on a note, on a deed, on a mortgage or on a letter it will be recognized as the signature of the individual with scarcely the possibility of error.
2nd. Following the general comparisons it will he well to analyze and compare the letters forming the words and their connections and combinations, and what has been conviction as the result of the general comparison will, when taken with the analyses, become a moral certainty.