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

Chapter 5

Alienation of social authority

1720. Choice of deputies and of officials does not contain any alienation of civil authority; it is simply an exercise of civil authority. Nor is it limited by the degree of independence connected with the office of deputy and all other social offices; this independence arises from the law of justice which can never be violated by social authority. Authority is said to be limited only when it exists with an extension whose sphere is restricted. Authority cannot be limited where it does not exist.

1721. Nevertheless, limitation of authority can come about through an act of the fathers when they alienate a part of it. We have seen that all rights, except some congenital and inalienable rights, can be ceded by those possessing them, can be sold to others; in a word, alienated. Hence, social authority can be alienated by the fathers in whole or in part (USR, 313-314, 386-403). In fact, there is nothing to prevent the fathers from choosing, for example, a family in whom they place in perpetuity their own executive or even legislative authority.

1722. This is perfectly possible to conceive. In this case, they would have constituted a more or less absolute hereditary monarchy.

1723. With the constitution of this monarchic power, a very limited seigniorial element has entered civil association.

1724. In fact, ceding civil authority in perpetuity to such a family does not spring from the essence of society. It is a contract pertaining to individual Right, and to this extent resembles dominion which springs from willed subjection (RI, 531-532).

1725. In fact, we have seen that every social office is a power (USR, 404-414), and that having in one's own hands the faculty of regulating the modality of one's own and others' rights is a good, on account of the danger which could occur when such regulation is handed over to the judgment of another.

1726. Nevertheless, it is true that the family vested with social authority has no power beyond social power. In other words, it does not go beyond the regulation of the modality of the rights of the citizens. This is why we insisted that the seigniorial element is extremely limited in this case.

1727. This element is reduced, therefore, to the following headings:

1. To the title through which the vested family possesses such authority. This is held not through social title but cession, which resembles ownership and dominion acquired indirectly.
2. In the irrevocability of this cession which is presumed to be made in perpetuity.
3. In the annexed right of competence. The person who possesses such authority is also the competent judge of its exercise. The fathers cannot judge that a monarch errs, except in almost self-evident cases (RI, 610-612, 631, 713). In every other case, they hold the condition of dependents. The monarch, however, retains the total moral-jural obligation of regulating modality to the best of his knowledge according to the principles of justice and prudence.

1728. What we have said enables us to evaluate the social contract as it was conceived in the last century. This system was invented to explain the way in which people, in positing jointly the modality of their own rights, formed civil society. However, because the modality of particular rights cannot be conceived as posited in common without its being entrusted to particular persons administrating it, that is, to government, two very distinct questions were confused; the question of society was muddled with that of government.

In fact, granted the presence of a government which administers the modality of rights, civil society certainly exists.

It remains true, however, that government is one thing, and society another. Government is the power that administers the modality of rights; society posits jointly the modality of particular rights and makes it a single administration. Confusing these questions opened the way to two different paths, which led to two opposite systems. One group focused on government, and claimed to reduce and, as it were, sacrifice society to government; the other focused on society, and claimed to sacrifice government to it.

Those focusing on government started from the fact that humanity is furnished with governments; those focusing on society started with an abstraction because there are no societies without government. One side claimed to defend governments, the other, society; one side reasoned according to the data of experience, the other on theoretical principles; one side sustained absolute authority, the other made authority dependent on the social contract. Where does the truth lie?

1729. If we have to make a judgment about a formed government, we already have persons in whose hands lies the regulation of modality. Here, justice requires simply that we search for the title by which authority of this kind is placed in the hands of those who govern, or by which this authority is possessed. In such a case we have to form a judgment about the title, just as we judge about the title to any other right whatsoever. This title is a fact; if we find it valid, the government is legitimate, if invalid, illegitimate.

The titles by which rights are acquired can be various and all equally valid; the right to govern is subject to the same rules of justice as other rights. It is an error, therefore, to maintain that this right can be attained solely through a single title, or a single means (we shall deal with the various means of acquiring a title later). Those claiming that the social contract is the only means for obtaining this right err because they gratuitously restrict the various means and title to one alone. They confuse the question of the essence of civil society with the question of the origin of civil society and governments.

The essence of civil society remains the same, but the origin of governments can vary. Government is a right and, as we have said, a right is acquired in various ways amongst which immemorial possession is sufficient, even without information about the primitive title (RI, 1047).

Elsewhere, we have confuted the opinion of those unable to understand the origin of the right of ownership without presupposing some convention amongst the first humans [App., no. 2], that is, without an express or at least tacit contract in the division of land (RI, 334-343). We agreed that such a convention between individuals is indeed a way (when it actually takes place) of acquiring the right of ownership, but we added that this way does not exclude other equally legitimate ways such as occupation of what is unoccupied. Granted the principles which determine various ways of acquiring rights, all that remains is to examine the title with which an individual or collective person holds the power of government, and see if it is just.

The error of the supporters of the social system is very obvious, and necessarily overthrows civil societies and their already constituted governments, the greater part of whom are not founded on the title of contract, but upon other titles which can thus easily be declared illegitimate. But how can such a systematic theory arise?

1730. As we said, the theory arises from considering civil society in the abstract. If civil society is considered as it really is, that is, as subsistent, rather than abstract, very different results are seen. In the first case, the titles upon which the legitimacy of governments is judged exist in fact; in the second, positive titles are lacking, history no longer gives us any light on the matter, and we ourselves set aside the facts of its origin with such a method. Only the essence of civil society stands before us, and this certainly consists in the union of the modality of particular rights, that is, modality administered with unity of mind.

But this concept lacks any real person who may have acquired for himself the exclusive right to such administration. As a result, administration of the modality of particular rights belongs, in this hypothetical case, only to the whole body, and is shared by its members according to their contribution. The only way of conceiving how this modality can be brought together is mutual consent and pact on the part of those who make up the association. It is under this aspect that we disapprove of the social contract because it is used erroneously to explain the origin of governments rather than the origin of society. It claims to be the sole origin of governments rather than one amongst many; it becomes a necessary rather than a merely possible title.

1731. We conclude by distinguishing the four questions which have been confused and treated as one by publicists:

1. What is civil society? — The commonalty of fathers who want the modality of their rights to be regulated by a single social mind for the shared, better good of all.
2. What is government in civil society? — The collective person or the individual who regulates the modality of the rights of the commonalty.
3. What is the jural origin of society? — The common consent of the members.
4. What is the origin of governments, that is, what are the ways according to which a collective or individual person holds the administration of the modality of the rights of the commonalty? — There are different ways, which we shall enumerate shortly. Only by prescinding from all positive and factual ways are we left with the social contract itself, the origin in this case both of society and of government.

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