Rights In Civil Society
Appendix 1. (1635).
Kant, Schmalz, Rotteck and others see the concept of servitude in the obligation imposed on citizens of remaining forever in the civil society in which they find themselves without hope of leaving it. It seems certain that the opinion of those authors who deny the right of emigration to citizens comes from their attributing some kind of true seigniory to social government and of true servitude to citizens. Recently, an Italian author explained Rotteck's thought as follows:
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A person once belonging to a State either through birth or admission was considered a slave (Leibeigener) of the State and, in practice, of the ruler himself. In other words, he was obliged towards it with his whole person even till death, without any right of separation or emigration. It seemed that the perpetual end of the City required this because the social pact either demanded such a duty or declared the person the property of the lord of the territory or servant of the glebe. The law of circumscription, present also in the constitutional German States, rests on the same foundation. It declares the children of the fatherland servants of the glebe even before they have fulfilled the obligatory manifestation of their desire to belong to the State of their birth. Again, all laws requiring the permission of the supreme power before emigration (because these laws do not recognise the simple right to emigrate) derive from the same maxim, which is false and to be rejected without qualification. (Lehrbuch des Vernunftrechts, vol. 2, p. 133) |
Several things can be noted in these words, I think:
1. To declare as false the maxim `the subject is bound personally to his ruler,' and to reject it unconditionally, is to go too far. Because rational Right certainly recognises the Right of seigniory and the duty of servitude (rights and duties which are not absurd), it is necessary to limit oneself to an investigation of the fact. In other words, does a given special civil society have the jural title of seigniory and its relative servitude? Once the fact is determined, the corresponding Right is also determined. The false maxim, and the only one to be rejected unconditionally, is the general dictum: `Seigniory and servitude are present in all civil societies to the extent that they are civil societies.' This principle is the foundation of unjust absolutism. Viceversa, the maxim: `De facto civil societies are never mingled with an element of lawful seigniory' is also false and to be rejected unconditionally. This principle, which claims that all civil societies must be pure, is the principle of ultra-liberalism, and is as excessively unjust as the preceding principle. Jural reason, therefore, proceeds between the two extremes. It distinguishes the notion of civil society from the notion of seigniory, but shows that the two elements can be mixed in fact. Consequently, the practical jurisconsult has to examine the civil and seigniorial titles which subsist in a given, real, civil society and use them to determine if lawful seigniorial elements are present, what kind they are, and the extent to which they limit the freedom of others.
2. The Napoleonic law of conscription is eminently civil in its substance, but some notion of seigniorial right could have been added to it in those places where its introduction caused, for masters, the cessation of rights of defence and support from their subjects who were obliged, as in all feudal States, to supply a certain contingent of soldiers to him. But granted conscription as a civil law, as it is in its spirit and institution, it can indeed oblige citizens to undertake military service if they are still members of the State in the years when the law is in force. Having finished their military service, they are free, just as they are free from the law if they have emigrated before being subject to it.
3. Permission to emigrate does not seem to me to be opposed to civil liberty whenever such permission is referred to the right a society has to examine if the would-be emigrant owes the society anything. In this case, emigration could be impeded (RI, 501-507). However, the departure of a citizen free from debt or obligations towards the civil society cannot be impeded by the society. This permission, therefore, must be reduced to a declaration by the society that it has no outstanding credit or claims upon the citizen.