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Rights In Civil Society - Part One
The Essence Of Civil Society
Chapter 3

The modality of rights, and the characteristics accruing to civil society from it

1615. We now have to examine with greater care this proximate end of civil society, the regulation of the modality of rights. The aim of the study is to determine more accurately the nature of civil association. We shall do this by describing those characteristics which accrue to civil society as a result of such modality. It is these characteristics which separate civil society from other societies and enclose it within a precise sphere of action.

1616. Right and the mode in which right exists, or in which it is used, are different and sometimes independent things. This independence is verified every time the mode of a right can be changed without the possessor of the right losing any of his goods, his pleasures, or his reasonable contentment. In such a case, this mode is not a right, but something distinct from and independent of the right. Indifferent actions also, which bring neither good nor bad to human beings, are modalities; they cannot be called rights.

Moreover, commutation in which a person's goods lose nothing of their value either in se or in relationship to the reasonable affection felt by the person who possesses them, does not prejudice rights; the change is only in their modality.
Again, if one person tries to save another from imminent harm by removing some good or right inferior to the damage to which he would otherwise be inevitably subject, we have a change in modality, not the subtraction of a right.
Modality of rights includes all these cases.
The distinction between modality and right originates therefore from the principle that the object of right can only be that which is actually good; whatever is indifferent cannot be the object of right.(26)

1617. But that which is indifferent for the person who possesses a right may not be indifferent for others. In this case, the former has the obligation to permit the variation of the modality of his right, and others to whom this is of assistance have the right to demand it.

1618. In the state of nature, therefore, before the existence of civil society, people were obliged to enter into conventions which determined the modalities held by their rights whenever such modalities, which were indifferent to their possessors, brought good or harm to others. Such conventions were established until to some extent it was felt necessary to draw up general, permanent regulations. At this point, civil society was instituted.

1619. Here we have to consider those special characteristics that distinguish civil society from other societies which, like civil society, have the modality of rights as their proximate end. Note that in dealing with these characteristics we shall consider civil society in its general, abstract notion, not in any of its particular forms.
These necessary abstractions should not make the reader suspicious. Abstractions cause error when they take the place of subsistent things. When used as surveyors employ them (as principles applicable to subsistent things, but with due regard for all the irregularities present in actually existent matter), they lead to the perfection of knowledge and of society itself.

1620. In reasoning abstractly about civil society, we intend to explain that which results from the pure concept of civil society (without harm to particular, real rights) rather than that which civil society should be in reality. There is a considerable difference between our way of dealing with civil society in the abstract and that of 18th century philosophers. For them, civil society found through abstraction was to be the norm; for us, it is only a possibility. They describe a society which, according to them, is necessary, that is, a society which human beings have an inalienable right to form for themselves. We describe a hypothetical society, completely distinct from the real rights of human beings. Real rights can never be violated. The society of which we are speaking, which may or may not come into existence, can be and is modified in different ways by real, subsistent rights.

With this as our premise, we can now show the characteristics of civil society as we think they result from its simple concept without any adjunct of knowledge in the mind beyond that of civil society, and without any calculation about what pertains to the forms or real circumstances affecting subsistent civil society.

1621. As we said, civil society is not the only society that has the modality of rights as its proximate end. We have pointed out several others (USR, 138, 141). How are they distinguished from civil society?

Societies which have the modality of rights as their proximate end are either partial, if they are concerned with some part of human rights, or universal, if they include all these rights. Examples of partial societies which have as their proximate end the modality of rights are companies which insure goods in transit, against fire, and so on; certain societies which deal with life assurance, and any private society set up to protect rights, or to further litigation, and so on.
Civil society alone is the only universal society of such a kind, and can indeed be defined as `that society which has as its aim the modality of all the rights of the associates'.

1622. Civil society, which has as its aim the regulation of the modality of all rights, has the consequent faculty of regulating the modality of the rights of the family. It cannot, however, encroach on the value of such rights whenever its ordinance is such that it may prejudice domestic society. If there is some doubt about this, the judgment of the family, the competent judge about its own goods, must be consulted or heard.

1623. For the same reason, civil society can regulate the modality of the rights of theocratic society (ius circa sacra). However, only the rulers of the theocratic society are the competent judges who must decide if the regulation harms the rights and goods of the society itself.

1624. When misunderstood, the universality with which civil government is endowed has produced various systems of despotism. This comes about through failure to consider that such universality is restricted simply to the modality of rights in relationship to which alone there may be some part of truth in a principle which is so often abused to bring the Church to heel, that is, `the Church is in the State, not the State in the Church.'

1625. Because of its universality, civil society is also characterised by supremacy. In other words, `civil society is supreme amongst all societies which have the modality of rights as their proximate end.' Consequently, civil society has to regulate all similar societies.

1626. Misunderstanding of universality and supremacy, the two sublime characteristics of civil society, has occasioned many errors, as we shall see immediately. Errors arise through insufficient attention to the fact that these characteristics are relative only to societies which have the modality of rights as their proximate end; they are not relative to societies which have rights themselves as their proximate end.

1627. The origin of many absurd, tyrannical systems of public right is found here: the universality and supremacy of civil society have not been restricted within the order of the modality of rights, but absolutised.

Hobbes' system arose from badly conceived supremacy. This sophist saw that it was necessary to recur to some absolute in the series of human societies. He saw that it was imperative finally to reach some supreme society, force, judgment. This ultimate society, according to him, was called `civil society'. Thus, by means of a simple entitlement arbitrarily and falsely attached to a concept, civil society was rendered infallible, the sole norm of every action. Hobbes made the society he had conceived the monstrous body which he then called indifferently `civil society' and even `ecclesiastical society', according to the objects with which it dealt.(27)

His error did not consist in having formed such a bizarre ideal of society; to conceive any society whatsoever in the abstract is not an error. He erred in wanting to posit his totally imaginary society in the place of true, subsistent civil society. Hobbes' society is not civil society, just as it is not ecclesiastical society; it is an abstraction, as we have said, drawn out mentally from all societies.

What path did Hobbes follow in reaching such an error? — He drew an analogy between the supremacy of civil society and the supremacy of the society that he had conceived. — How do these supremacies differ? — The supremacy of civil society refers only to societies concerned with the modality of rights; the supremacy of Hobbes' society is absolute over all societies and all individuals. In fact, the supremacy of civil society does not imply any seigniorial power over other societies or over individuals; it implies no power whatsoever as long as we are dealing with rights, rather than the modality of rights. Relative to rights, there is perfect equality, between individual and civil society (RI, 1649-1688), just as there is between independent persons. Hobbes omitted to posit this limitation because he had not grasped the extremely important difference between right and modality. He did not see how greatly the nature of civil society differed from that of his imaginary society. Hobbes' poor understanding of the supremacy of civil society was the fount of his mistakes.

1628. The universality of civil society was equally badly understood. Its false concept generated many illiberal, tyrannical systems, among them that of certain Protestants who against all reason posited this gratuitous affirmation: `The Church is in the State, not the State in the Church.'

1629. They were ignorant of the different character of the two societies; they did not see that civil society is universal only relative to the modality of rights. As far as rights themselves are concerned, civil society does not even exist. Rights are not its object, but the object of other societies, and in general of domestic and theocratic society.

1630. Another characteristic of perfectly constituted civil society is perpetuity.

1631. This does not mean that civil society can never be dissolved. It does in fact dissolve itself effectively through disastrous wars and other causes which shatter its bonds (RI, 1660, 1875). It is characterised by perpetuity in the sense that it is perpetual in the intention of the members who compose it, in its laws and in its provisions.

1632. This requires some explanation. When we say that civil society is perpetual in the intention of its members, we do not mean that they intend to oblige themselves never to leave it. This would be absurd and against the principles of universal social Right (USR, 454, 470, 472-475). Rather, because civil society is of its nature perpetual, the members intend to join it forever, without however renouncing their right to change their allegiance.

1633. At this point, many things have to be taken into consideration relative to the way in which the bond of any special civil society is dissolved. First, we have to see if the society is truly civil, or mingled with seigniory. It is clear that the bond-servant cannot leave his master at will.

1634. The question takes on another aspect, however, if we consider a pure civil society whose governors, outside the ambit of civil authority, have no other right of seigniory.

1635. I think that this distinction allows us to reconcile the two differing opinions of authors about `the right to emigrate'. Those who consider civil society as seigniory deny citizens free emigration because they consider them as bound to service [App., no. 1]. And these authors are correct when this seigniory or seigniorial element is verified. The bond-servant must remain with the master until redeemed from servitude (USR, 181).

1636. Authors who consider purely civil society agree that citizens have this right on certain conditions; they also are correct. These conditions are that civil society has no account to settle with the person who leaves it. For example, the emigrant must not be employed by or bound to the civil society through some special convention, or in debt for any loan, or be the cause of positive prejudice or harm through his departure.(28) I say `positive prejudice or harm' because a simple lack of greater usefulness does not authorise a society to keep its members (RI, 702-704).

1637. Stable goods which the emigrant does not wish to sell but retains in the territory of the civil society are to be considered on a par with the other stable goods of foreigners.

1638. If he wishes to sell them, he must be the master; there is no reason for imposing a departure tax on him.(29)

1639. However, it does not seem unjust to impose a departure tax on an absent citizen if through his absence he devotes less to the society, proportionately speaking, than others who remain in the State, ever ready to serve it even with their own personal work. This does not apply if the absentee, through his absence, shares to a lesser extent in the benefits of his homeland.

1640. Civil society, therefore, must regulate the modality of rights of its members universally, supremely and in perpetuity. It cannot do this, however, without possessing a prevalent force with which to overcome any obstacle opposed to the regulation of the modality it has decreed.

1641. Prevalence of force is, therefore, a characteristic of civil society.

1642. It is of course sufficient for this force to be effective however this may be achieved. It is certainly not necessary for the civil government to have at its disposition a material force greater than all the material forces present in the society — this is sometimes impossible. But it is at least necessary that its regulation of modality be effectively respected and practised by all. This normally results from a fusion of partly moral, partly intellectual and partly material forces, whose proportion can depend upon purely accidental circumstances. This fusion of forces constitutes the prevalent power of government. If the force of moral opinion is lacking, or errors and prejudices against the government have to be overcome, the government needs to increase its material forces in order to exist and be able to govern usefully. It thus fulfils its condition of existence, that is, the prevalence of its power over all opposition.

1643. Civil society leaves intact the rights of all individuals, and of the two societies which precede it in logical and chronological order. It is instituted to regulate the modality of these rights in such a way that all rights may be preserved, and those who possess them may use and enjoy them in peace, and increase them. Because civil society (granted its universality) extends such protection to all rights, its aim is the common good.

1644. The common good must be distinguished from the public good. These two matters are confused with consequent serious harm to the science of public Right and to humanity which, because of this confusion of concepts, searches in vain for a suitable social constitution. The common good is the good of all the individuals who make up the social body and are subjects of rights; the public good is the good of the social body taken as a whole or, according to some opinions, taken in its organisation.

1645. The principle of public good, substituted for the principle of common good, prevailed in pagan societies.

1646. Christianity fought this unceasingly, but was able only little by little to eradicate such a harmful error from people's minds and to wipe out in civil governments such an unjust principle of activity. Even now, civilised Christian societies are still not free of it, although they are working to free themselves.

1647. When the principle of public good is substituted for that of the common good, utility is substituted for justice. Politics, having taken Right into its bullying hands, now governs it as it pleases.

1648. The following false principles, which tore humanity apart in every age while pretending to help and save it, result from this profoundly unjust principle:

1. Right is nothing more than utility.(30)
2. Salus Reipublicae summa lex [the preservation of the State is the supreme law]. — The absolute right of preservation.(31)
3. Expedit... ut unus moriatur homo pro populo, et non tota gens pereat [It is expedient... that one man should die for the people, and that the whole nation should not perish].(32) Assassination of the individual carried out legally by the society (RI, 1647-1703, 1747-1757).
4. Reasons of State justify any violation.(33)
5. Everything must be decided by majority vote (USR, 243-310). Tyranny of the majority over the minority.(34)

1649. The civil State is instituted to protect and improve all the rights of its members. It acts against its natural function, the function for which it exists, if it harms rather than helps a single one of its members for the sake even of benefiting all the others, or proposes to attain the good of some of them, even the elders or the majority, and not that of all. In other words, if it is satisfied with acting for the so-called public good rather than the common good.

1650. The obvious question at this point is: `If civil society must have as its object the common good of all its individual members, how is this good to be distributed amongst them?' To reply simply that `utility must be spread out equally', as several publicists have done, is obviously mistaken.(35)

1651. If utility has to be made equal for all, two citizens, one of whom has contributed the equivalent of one hundred units to a society, and the other a single unit, would have to receive equal earnings. Everyone feels the injustice of such a system (USR, 341). Parity of utility, understood in this sense, presupposes or leads to absolute democracy. In such a system, this kind of democracy would be the only jural form of civil association. The law which allows every member to enjoy the same portion of social advantage cannot be reasonable except on the supposition that every individual has posited the same capital in the society — which is against nature. The right of ownership does not have equality of possessions as a condition; inequality therefore is present within the sphere of Right. Wanting to make possessions equal by force is the same as starting to institute civil society with the disavowal of right; it means building society on injustice and arbitrary will.

1652. What has to be understood, on the contrary, is that civil society comes together not to disestablish rights, but to protect and favour them by acknowledging them as they exist prior to civil society. Moreover, because no right is excluded from its protection, the utility that members must draw from the ordinances and operations of civil society must be equitably divided in proportion to the quantity of rights they possess. The social contribution depends for its existence on this proportion. Those with more rights have assigned more to the protection of society, and must contribute more to the burdens of society. Consequently they must obtain greater advantage from the protection it provides. Those with fewer rights have put less under the protection of society, contribute less to it and must draw less advantage from it.

1653. The object of civil society, therefore, in regulating the modality of the rights of the members, must be to equalise the SHARE-QUOTA OF UTILITY which members can derive from the institution and management of society; it does not consist in equalising utility itself among the members. This is the equable distribution of common good to which legislative thought and the government of civil society should constantly tend if it wishes to walk in the way of Right.

1654. It must be noted finally that it is extremely difficult to attain in full the balance indicated by the share-quota of utility. Proximity to this end will be proportioned to the wisdom of the government and of the people themselves.

1655. There are, therefore, two duties of social government: 1. to increase in itself, and in the people, the enlightenment with which civil society can always come nearer the attainment of the balance we have described; 2. to tend to the equalisation of the share-quota utility with all the enlightenment and means it possesses(36) while disregarding every private or party interest.

1656. We shall conclude by perfecting the formula that expresses the proximate end of civil society: `The end of civil society is the regulation of the modality of the rights of all for the common good by means of A CONTINUOUS TENDENCY to equalise the share-quota of utility.'

1657. As we said, the phrase `public good' means the good of the social body, not of its single parts. For example, at Sparta, where everything tended, as in all pagan societies, to the public good, defective babies were thrown into the Eurotas to ensure a society of healthy and robust citizens. The life of these innocent children was sacrificed to the public good which thus became a tyrant ruling common good.

1658. But in what part of the social body does the good of that body lie? - Of necessity in the principal part of the body, which is always formed by those citizens who control social authority. Consequently, the good of the social body, which is called public good under different forms of government, changes place. In the democratic form of government, public good is normally made to consist in the good of the majority. Under an aristocracy, public good is understood as the good of the noble families who govern the State. Under a monarchic form of government, the good of the family which governs the State becomes the principal portion of public good; the good of the families and bodies bound to the monarchy by service and alliances form a considerable part of the public good.

This is natural. The good of that part of the social body on which the constitution, life and movement of the body depend is undoubtedly more important for the general good of the social body; and it is this part which possesses social authority.

1659. What we have said here about the principal seat of public good under different forms of government has to be distinguished from the artifice used by political parties, each of which endeavours to make the masses believe that the public good is served by its triumph.(37) The parties appear to be right when society is disturbed and stands in need of harmony and recomposition, but for the moment we can ignore this special, exceptional case.

1660. We ask, therefore, if civil society can in some way have public good as its end? It can indeed, but on condition that public good is subordinated as a means to common good, which is its sole proximate end.

1661. The following principles flow from this reply:

1. Not a single right of individual citizens (the complex of these rights is the common good) can be sacrificed for the sake of the public good. - Sacrificed means being destroyed or damaged without recompense, when the right or its worth(38) could otherwise be saved.
2. Public good must be preferred to private good once the rights of individuals have been safeguarded. In this case, public good will undoubtedly further common good.

1662. In addition, when first the common good and then the public good have been safeguarded, the private good of individuals and families can and must be pursued, provided one condition is observed: the opportunity for obtaining private good through the action of society must be open equally to all families and all individuals. It must not be restricted to particular individuals or families or bodies.

1663. When this condition has been verified, all citizens have equality of opportunity, and private good itself becomes part of the common good. The good that one family or individual gains today from civil society is gained tomorrow by another individual or family when they are placed in the same circumstances with the same opportunities. Private good, alternating between families and distributing itself evenly over a certain period of time, is absorbed and changed into true common good.

1664. There are three areas to which civil society can extend its ordinances for the sake of obtaining public good:

1. It can make all the ordinances helpful to public good but without causing damage to any of its citizens. These ordinances must not in any way affect those who gain no advantage.
2. It can impose natural, slight actions, not burdensome or damaging, on its citizens for the sake of public good. These actions are not to be harmful to the person who does them; they can be considered as modalities of rights.
3. Civil society can also limit the inoffensive freedom of citizens, that is, their rights to actions and things (RI, 79-84), provided this causes the citizens no trouble nor arouses any jural resentment in them.

1665. In the second place, what can civil society do for the private good of determined persons or families?

First, it cannot harm some persons or families, nor exclude them from concurrence, or opportunity, in order to favour certain others.

Second, for the sake of private advantage, civil society can regulate the modality of the first two areas, mentioned above relative to public good. It cannot do this, however, relative to the third area, which touches the limitation placed on others' freedom, unless it has a firm intention of never preferring private to public good. Indeed, it can favour private good only for the sake of public good, just as public good must be favoured in subordination to the common good. This is the case when dealing with the acquisition of some good. The opposite is true when dealing with the avoidance of evil. Society must prefer not to do harm to a private individual even for the sake of obtaining the safety of all the others. Conversely, it cannot do some good to the individual unless this good comes about without any damage or diminution of public good.

1666. Besides this, civil society can make ordinances about the ownership held by particular persons when such an ordinance is to their indubitable advantage. In this way, civil society simply regulates the modality of their rights without touching the rights themselves. What is taken away on the one hand is amply compensated for on the other. Activity of this kind is the exercise of the right to benefit others, which is proper not only to civil society but to each person. Indeed, civil society has a special office in this regard relative to the end for which it was instituted because 1. the common good results from the good of the individuals and 2. the good of the individuals has a useful influence on the common good.

1667. In the third place, civil society has the right to do the following for the common good: restrict inoffensive freedom of private individuals in the three areas indicated; restrict the freedom of the public at large and of the commonalty; use the ownership held by particular persons provided they are compensated as individuals or sufficiently compensated by the share they have in the common good. Civil society can also reach out to the ownership held by the commonalty or a body or a determinate number of persons provided full recompense is made in both cases. Finally, it can lay hands on the ownership of the commonalty (the right to tax) if the commonalty, that is, all the individuals forming it, are recompensed proportionately through the good which will be obtained.

We sum up: the powers of civil society and the limits beyond which it cannot go without fault relative to its members are:

1. It can make ordinances about inoffensive freedom as follows: for the good of individuals who belong to it; for the public good provided individuals experience no jural resentment; for the common good. It offends against individuals if it disposes of their freedom irrespective of any of these three aims and without the conditions we have indicated.

2. It can make ordinances about the ownership belonging to individuals when the aim is their own greater good; when the aim is the common or public good; and when the individual shares in what is being done through adequate compensation for the harm suffered. Civil society offends particular persons when making ordinances about their ownership if the ordinance does not aim at the good of the individual himself or the public or common good, or without advantage or full recompense to the damaged owner.

3. Civil society can make ordinances about public freedom when the aim is the public good or the common good. It offends the public in making ordinances about its freedom if such aims are not effectively verified.

4. It can make ordinances about public ownership, or the ownership held by a body or an indeterminate number of individuals when this is done for the common good, and for a common good sufficient to compensate all the citizens who have been harmed. It offends the public if it makes ordinances about its ownership without aiming effectively at the common good, and at a common good sufficient to compensate all the citizens who have been harmed.

5. It can make ordinances about common, inoffensive freedom for the common good. It offends all the citizens if it makes ordinances about their freedom without this aim.

6. It can make ordinances about common ownership when the aim is a common good sufficient to compensate all the citizens for their loss. It offends the rights of all the citizens if it makes ordinances about their ownership without aiming at the common good, and at a good sufficient to recompense all their losses.

The social power to alter the modality of rights extends to these six branches of ordinances.

1668. All the regulations which civil society can impose relative to the modality of the rights of the members cannot be put into effect without the use of external means, persons and things. Every social activity requires the use of functionaries, and the consumption of things of worth which economists call `riches'. Civil society can therefore be called external society with respect to the means necessary for its action (USR, 105-107, 125-127).

1669. Like all human societies, however, its constitution has an internal or spiritual part as well as an external part.(39)

1670. Simple consideration of the general concept of civil society — an association of several families or heads of families for the sake of regulating for common advantage the modality of the rights they possess — shows that its essence does not extend either to all human beings or to all those who are found in a given territory, but only to those who do in fact associate.

1671. Nevertheless, although civil society does not need to include all heads of families in order to be what it is, we still have to see if it can, according to Right, aggregate them all to itself. The answer to this question follows from its eighth characteristic.

1672. Civil society has as its end the protection of rights. All human beings have rights for which they want more or less general protection. From this point of view there is nothing to impede anyone from belonging to civil society.

1673. Civil society cannot exist, however, without the use of external means. These have to be provided for it by the members who seek safeguards and protection for their rights. It is clear that not all human beings can provide the means, at least with the regularity and surety that society requires. It follows therefore that in a civil society regulated with perfect equity there is no place amongst the citizens for those unable to contribute anything of substance to the society and incapable of providing the necessary taxes by regular work.

1674. No one may conclude from this that the concept of civil society demands the possession of land. There are other riches which can be used for the purpose.

1675. Nor does this concept require territory of one's own in which the associates dwell continually. Nomad families or even adventurers can join together in some civil association,(40) although this may not be suitable for providing them with all the goods possessed by peoples permanently attached to a territory.

1676. Finally, we must note that, according to this concept of society, the sole condition upon which someone can be admitted as a citizen is that he has sufficient means to live and to pay his contribution.(41)

1677. This does not mean that those who cannot attain citizenship are therefore lacking in rights, nor that citizens and the City itself have no obligation towards them. Civil society and its members are in the state of nature relative to those outside the society. Both society and its individual members, as well all human beings present in civil society without belonging to it, are jural persons and as such equal (RI, 1647-1688). Natural, rational right must be maintained amongst such jural persons with equal respect on both sides.

1678. Again, members of civil society and those not belonging to it are nevertheless associated in theocratic society. They are equally obliged to respect mutual rights and to fulfil the mutual obligations which they have as equal members of this divine society.

1679. We have noted that civil society amongst the pagans had absorbed all things. It recognised no society superior to itself and no right other than that established by itself. This horrendous tyranny of civil society was abrogated by God through the fact of Christianity. Civil associations now have to acknowledge that they cannot dispose in any way of human rights, all of which they have to respect whether the subjects of these rights exist within or without civil society. The only authority possessed by civil societies is that of regulating the modality of the rights of their members — nothing more.

This truth has been accepted in various degrees in all Christian legislations, although not all have followed it in practice. The Austrian Code is explicit and clear: `Every human being has innate rights which are known through reason alone; each human being, therefore, is to be considered as a person.'(42)

1680. Just as it is not absurd for a man to be in the state of nature without belonging to any civil society, so it is not absurd for him to belong to several civil societies contemporaneously.

1681. The reason for this lies in the distinction between jural person and individual person. The jural person, although formed from more than one real individual (RI, 1649-1650), can be unique; similarly, a single real individual can contemporaneously be more than one jural person. The latter is simply a complex of rights administered with unity of will.

1682. It is not repugnant, therefore, when considered in itself, for one complex of rights in an individual to be placed under the protection of one civil society, and for another complex of rights belonging to the same individual to be placed under the protection of another civil society. In this case, the individual takes a suitable procurator(43) as his representative in his absence, and pays the contribution necessary to provide the two social bodies with means of action.

1683. It is not necessary to the essence of civil society that it should include all human beings. As a result, mankind is divided into different civil associations. The proximity of related families, or even simple proximity of place, does indeed unite them, but as relationship becomes more distant and communication more difficult, they find themselves divided and distributed in several commonalties. Geographical, linguistic, intellectual, moral, spiritual and religious differences all contribute to the growing isolation. In this case, there is nothing to prevent an individual's acceptance as member in two or more of these commonalties provided he contributes his quota of expenses and activity in person or through others, according to varying social constitutions and conventions.

1684. A difficulty would arise if an individual belonged to two societies at war with another. This however would not be a case of mere Right. It is impossible for both societies to be acting justly, and the individual would simply have the obligation to act in favour of the just side. If the justice of the case were doubtful, an obligation to decide the matter peacefully would exist, but no casus belli (RI, 462, 501, 505, 1026). Our citizen would then either have to abstain from taking part or do what he could to pacify the two societies. If one side refused, and thus committed an evident injustice, he would have to abandon it. The difficulty about belonging to two civil societies would be reduced to the disturbance and harm arising for citizens with dual nationality and possessions in both territories.(44) If negotiations did not succeed and right on both sides were still doubtful, the citizen belonging to both societies could refer judgment to the societies themselves as competent judges, while he himself remained as passive as possible except for the contribution prescribed by both societies.

1685. The question of citizenship, which belongs to social right, must not be confused with that of servile subjection, which belongs to seigniorial right. A person cannot properly speaking be a bond-servant of more than one master; but he can be a citizen of more than one City.

1686. Civil society regulates the modality of all the rights of its members, that is, of all rights to whose modality its power extends.(45)

Every member therefore of civil society receives an advantage proportioned to the quantity of the rights he places under the protection of the society. It follows that he must contribute to the society a share-quota of the external means necessary for its existence and administration. This quota will be in proportion to the quantity of rights whose modality is regulated. Such is the only principle suitable for directing the equable distribution of taxes (USR, 338-341).

1687. It follows that the persons contributing are those who posit civil society in being and provide its action. Hence, rigorous justice requires that radical(46) and autocratic social power, if not alienated, should be distributed amongst the contributors in proportion to the size of their contribution. This, as we said, is proportioned to the quantity of their rights, whose modality is regulated by the society; it is also in proportion to the advantages they receive from the association (USR, 214-310).

1688. I said `except for the judicial part'. In fact, two parts in civil society have to be distinguished with the utmost care:

1. The part relative to justice — this is not arbitrary, but fixed by jural, rational law.
2. The administrative, prudential part — the political part in the strict sense - which consists in determining and choosing from amongst the just activities of the society those which are most beneficial to the common good, that is, to the end of the society itself.

If there is a question of justice, neither majority voting nor a greater quantity of rights (a majority of jural persons) should prevail. Each person is obliged to submit to the law of justice, even if this is suggested by a single individual or by a person foreign to the society (USR, 305-310).

1689. Judicial power, understood in its greatest extension, must be placed in the hands of the wisest and holiest people who can be found; administrative or strictly political power must lie either with the majority vote or with unanimity, and is of its nature distributed amongst the members according to the quota of their contribution to the external means with which the society endures and carries out its activity.(47)

1690. At this point, we can also consider the jural solution to the very important question of electoral patrimony which is subject to so many controversies in representative governments.
It is clear in the first place that establishing a fixed patrimony is not absolutely necessary. The amount of contribution needed for a right to a say in the choice of deputies must, of course, be established, but this personal contribution, which we can call capitation, can vary from year to year, according to the amount spent on the administration.

1691. Again, if deputies are nominated for a certain number of years, citizens must be able to have their say in the choice, provided they can assure the State of their ability to pay the capitation for that number of years. If, later, the capitation is not paid, the right to vote is lost.

1692. I said that setting such a patrimony is not absolutely necessary. Circumstances and experience can well render it necessary if it becomes clear that without it social administration would be rendered uncertain, hesitant or too complicated. In this case, the patrimony would have to be income which stably assured for the civil administration the contribution of a fixed capitation calculated according to an abundant median.

1693. Electors with a greater number of votes must assure for the State an income corresponding to that number.

1694. In the state of nature, the modality of rights was and is regulated by each individual, by each partial society. Was this need to regulate the modality of one's own rights in relationship with that of others good for the owners of rights? In the first place, it was a burden because, as we said, modality is what can be done about a right, prescinding from the good the person draws from it. In addition, modality also brought responsibility from the point of view of conscience, and often became a burden superior to the forces of the person who bore it.

1695. On the other hand, it was good for individuals to have this freedom to regulate the modality of their own rights. With it they possessed the means of governing or harming, of diminishing or increasing the good coming from their right. Entrusting others with such regulation is a delicate and dangerous matter. Every owner wants either to have it in his own hands or be able to put it in safe hands. With the introduction of civil society, all owners, depriving themselves of this modality, placed in common the right to regulate the modality of their own rights. This, accompanied by the contribution of external means, is the common fund of civil society.

This explains why individuals or families did not deprive themselves of their own goods when they entered civil society, but only of the trouble of regulating the modality of their rights. This is not a advantage unless considered in relationship to the danger of abuse that might be feared if modality fell into other hands. Moreover, families, in ceding such a burden to civil society, have not in any way ceded the right to abuse modality, but only the faculty of regulating it advantageously, or at least with more advantage than they could have achieved by themselves.

Of its nature, therefore, civil society has no seigniorial or profit-making power. It is simply a beneficial power. Its function is to remove a burden from all families and establish for them peaceful cohabitation, with constant progress and development in every kind of good.

1696. A society composed of members who put in common a greater or lesser fund, and receive different degrees of advantage from it, is a multi-quota society (USR, 131). It is clear from what has been said that this is the case with civil society.

1697. This quality does not harm anyone, but is of assistance to all. Nor does it render society unequal (USR, 141); all citizens have the same law before which they are equal.

1698. If jural persons, taken as an equal complex of rights, are distinguished from real persons, civil society is uni-quota relative to jural persons. The complex itself of rights with which a subject is vested gives a title to the same degree of power and to the same degree of benefits arising from it.

1699. Civil society acquires the characteristic of unequal society if some bond of seigniory intervenes in it. Because the law determining seigniorial rights is different from the law determining civil rights, the members of such a society are not subject to the same law. This inequality does not arise from the nature of society, however, but from the heterogeneous element accidentally inserted in it.

Notes

(26) ER, 252-255.

(27) Quam nos civitatem, populus et clericus appellat Ecclesiam (De homine, c. 14 and c. 15: Cum enim voluntas Dei nisi per civitatem non cognoscatur, etc.). Thus he reduces religion to horrible pharisaism, to mere legality. The definition of his City, whether true or not, impious or not, has to be believed by faith.

(28) Lampredi's condition to the right of emigration is too vague: `We say that it is lawful on the basis of the same principles which we have established when dealing with this subject, provided the society has no interest in the matter.' A society always has an interest in retaining a citizen who possesses some ability or faculty. If Lampredi were correct, the only persons with a right to emigration would be the helpless poor.

(29) Rotteck's authorisation of the imposition of such a tax seems to be contradictory in the light of what he has said about the right to emigrate. By selling his goods, the emigrant does no positive harm to the society, does not injure social rights; he merely makes use of his right of ownership.

(30) The reader can see a confutation of utilitarian authors in [Rosmini's] Breve esposizione della Filosofia di M. Gioia, Parte Pratica; and the Storia de' Sistemi intorno al principio della morale, cc. 4 and 5.

(31) ER, 329-331.

(32) Jn 11: 50.

(33) This system has been applied to a great extent in modern times. See vol. 27 of the Collezione, pp. 462 ss.

(34) Cf. Society and its Purpose, 476-486.

(35) Some authors did intend to speak of the relevant share-quota of utility when they gave this reply. Understood in this way, the answer is correct, but its expression is still defective.

(36) No more can be required of any government; no one is held to the impossible, as we have said (RI, 735-771).

(37) Cf. SP, 277-282 for a distinction between political parties and legitimate forms of government.

(38) We add `or its worth', because it is possible to imagine a case in which society, by preserving for John Smith a right which is worth one unit, may then leave him exposed to the loss of other rights worth nine. In such a case, society could certainly dispose of John Smith's one-unit right. Its loss would be more than compensated by the preservation and defence of his nine-unit rights. As we have said many times (ER, 252-255), right is constituted by worth, not by a simple faculty without worth.

(39) Cf. SP, 149-168.

(40) Schmalz is wrong in denying this on the basis that a society of human beings without fixed, proper territory cannot protect all the rights of which man is susceptible. The premise is true, but this does not prevent the existence of a true civil society between people. Not all civil societies are perfectly equal in their organisation and effective in obtaining their end, but this does mean that they lack the essence of civil societies. If the word `State' is reserved for civil societies established in their own territory, I would willingly admit that ambulant civil societies should be called something other than `States'. Cf. Le Droit des gens, bk. 1, c. 1.

(41) Those altogether lacking in goods must not be excluded from civil society because they have no independence, as Kant requires, but simply because they cannot pay their contribution, a necessary condition for the existence of civil government.

(42) §16. — Although this paragraph speaks only of innate rights, it must be extended to all rights, even rights acquired under a just title when human beings are found in the extra-social state. Affirming that such rights are known by reason alone is in opposition to their being known through the positive ordinance of the civil legislator, although it does not exclude the rights and duties known through divine revelation. The word person, as we have said on other occasions, is a noun indicating dignity and power. Right is in fact a power; it indicates a jural state formed by a complex of rights adherent to a human being. Each human, therefore, even outside the civil body, has a jural state; he is a jural person whom society must respect for the same reason that it wishes to be respected itself.

(43) Society guards every good and right posited in it, but nothing more. Individual activity is not an essential element of civil society; the activity of a jural person is sufficient. We did indeed say that civil society regulates the modality of all the rights of the members, but `members' must be understood here as a jural person.

(44) The principle that the same person could belong to two or more cities was in fact acknowledged by governments. Often, several cities admitted the same family to citizenship.

(45) A citizen possessing some good or right outside the power of the civil society to which he belongs receives no protection or advantage in respect of them. Hence, they do not belong either to the civil society or to the jural person that is a member of it. The goods may be in the territory of another civil society, located amidst families who belong to another society. In this case, it is the second society which protects them and regulates their modality in relationship with the rights of the other families who belong to it. The owner of the goods will therefore have to contribute to the second society the quota necessary for the protection of the goods. We could ask here if the citizen of one society, when harmed by another society in whose territory his possessions lie, could be protected forcefully by the first society against the injustice. He could be protected just as persons in the state of nature can provide mutual assistance to repel unjust aggression or defend themselves against unjust harm. But the society is not obliged to do this under any title of society. The relationships between two independent societies belong to individual Right (which is called Right of the nations), not to social Right.

(46) If radical power is still in the hands of fathers, they can at will choose officials, to whom they entrust executive power. The suitability of these officials, and the distribution of offices according to merit, will depend upon the enlightenment of will found in the fathers. Mistaken choices would not necessarily be unjust, therefore, although they would lead to damage. Any law, however, which antecedently excludes someone from simple passive concurrence for such posts, without factual proof of unsuitability, is always unjust because it violates relative jural freedom (RI, 83, 273).

(47) Here, we can only mention this important question in passing. It is developed in Part 3 of Section 2.

Chapter 04

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