The will that wills classes of actions, the legislative activity, is either moral or merely economic, and can therefore be judged as either moral or immoral, economic or anti-economic. But as the laws are will in the abstract, our judgment of the laws will also be an abstract judgment. To pronounce a concrete judgment, we must turn to the moment of the execution of the law, to the individual practical action, in which the law realizes itself. In this sphere, it is vain to dispute whether a law is essentially economic or moral: the economic or moral character of the law is not determined by the abstract intention of the legislator, but by the manner of its execution, by the quality of the individual executor. The punishment which a law assigns for a category of crimes may be intended by the legislator either to deter or to emend the criminal; but in the man who abstains from that particular kind of crime, the law is an economic one if the abstention is entirely due to the fear of the punishment, it is a moral one if it coincides with a sincere abhorrence of the crime. No law, therefore, can be said to be intrinsically moral, and if we want to define the legislative activity in its full extension, we must define it as generically practical or merely economic.
The same definition obviously applies to the will that executes the law, as distinct from the will that formulates it: the juridical activity, as Croce names it, is also generically practical or merely economic, and as such united to and distinct from the moral activity. As the juridical activity, however, does not partake of the abstractness of the legislative, but is as concrete and determined as the economic activity, there is actually no possibility of distinguishing the one from the other; the juridical activity is therefore identical with the economic activity. This is Croce's original solution of the fundamental problem of the philosophy of law; a solution which is closely connected with his recognition of a utilitarian practical category, distinct from but not opposed to the moral category, and with his reduction of all laws to individual laws. The reader must recall what has been said elsewhere of the relations between economic and moral values; and he will then understand in what sense it can be said that Croce's theory of law is an answer to the secular disputes on the relations between law and morality, between positive and ideal law, historical law and the Law of Nature. And he will also be able to perceive the difference between the reduction of the juridical to the mere economic activity, which, as we know, is also the form through which only morality realizes itself, and the theories of law as the pure embodiment of force and of the positive, established right as the only conceivable right, which are nothing but the counterpart of moral utilitarianism in the field of law. Croce's theory of law is, as all the rest of his philosophy is, a purely formal doctrine; not intended to defend one type of laws and institutions against any other, but attempting to furnish a conception of law, as an individual, perpetually new activity of the spirit of man, of which all laws and institutions, all phases and tendencies of political history, appear as concrete historical manifestations.