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Rights in Civil Society - Part Three

Chapter 5

Titles of second acquisition

1867. We have said that titles of second acquisition are those by which constituted civil government passes from one person (collective or individual) to another. Can a treatise on the origins of civil society deal with titles of second acquisition, if they presuppose the prior existence of civil society? Strictly speaking, such a discussion pertains to the part of Right dealing with the formation of rights, not their transmission (RI, 1031-1043); it concerns not the forms of rights but their titles, the ways of acquisition by which a particular person becomes the subject of rights.

1868. Nevertheless, a right, when transmitted from one subject to another, can sometimes change form, as happens in the transmission of the right of civil rule. I must therefore add something about the transmission of civil rule to what I said about the formation and origins of civil society.

1869. We must distinguish three easily confused things: 1. civil society; 2. government of civil society; 3. the form of this government.

Civil society cannot exist without government, and government cannot exist without a determined form. Furthermore, civil society does not exist except by means of government, and government does not exist except by means of a determined form. Hence, the origin of civil society must be sought in the origin of governments (where, in fact, I have sought it), and the origin of governments must be sought in the origin of the forms of governments. I have already shown this in part, and will complete the demonstration by discussing the ways of second acquisition.

Note that I do not intend to provide here a complete treatise on the transmission of civil rule from one person to another. The matter has been amply dealt with by publicists. Moreover, in Rights of the Individual I posited the principles of reason which must regulate the transmission of rights in general. These principles can be applied, with a few comments, to the transmission of the right to civil rule. My intention therefore is to discuss only the modifications of form which civil rule can undergo when transmitted from one subject to another.

1870. Any power whatsoever can be communicated from one person (collective or individual) to another in three ways. The person communicating the power

1. does not despoil himself of it but both retains and communicates it;
2. despoils himself of it, making it pass to the ownership of the person to whom he wishes to communicate it;
3. retains total ownership of it; the person to whom he communicates it simply becomes an instrument for exercising his power, a representative or minister to whom he entrusts the executive part of the power whose ownership he does not cede.

In all three ways, the person who possesses naturally transmissible power can ordinarily communicate it as he wishes. Relative to civil rule, history provides examples of all three, in each of which power can be communicated with or without limit.

1871. Examples of communication of civil power, in which the communicator is not deprived of the power, are those cases where a ruler associates another person with himself in exercising civil rule. Communication is full when rulers hold civil rule in perfect communion, as the Roman emperors did equally among themselves; or partial, when, for example, Emperors communicated it to Caesars.

1872. In the second way, the person despoiling himself of power and consigning its ownership to another can do this wholly or partially. If he despoils himself entirely, he can will
1. everything to pass into the ownership of the person to whom he consigns it;
2. to transmit only a part, or more exactly, to transmit the right of regulating the modality of rights not arbitrarily but according to certain laws which aid the ruler to regulate the modality better and more easily.
In the case of feudal rights, particularly hereditary rights, a portion of civil power together with a portion of seigniory was communicated to the invested family.

An example of total consignment of authority is royal, unconditional abdication in favour of children or others. The third case however obtains when political conditions (fundamental laws, civil constitutions) are imposed on those to whom the royal authority passes: the person who communicates disposes of his entire authority, without this passing in its material integrity to the person to whom it is transmitted. I say `material' because directive laws, if involved, are not properly speaking a limit to civil authority, but rather a help to better government, as I said.

1873. Finally, in the third mode the person to whom the authority is communicated is only a delegate, representative, minister of the person communicating the authority. The communicator has the faculty to limit the power by means of the mandate constituting his vicar; the formulas of this mandate are the law to be followed by the mandatary.

I will make a few observations on each of these three forms of civil power communicated through transmission.

1874. Power can generally be communicated either fully or partially, without loss to the communicator, in two ways:
1. by natural jural connection between the person to whom authority is communicated and the communicator;
2. by act of will.

1875. If power passes by means of a natural bond or connection, the quantity of power that passes is determined by the nature of the bond.
If power passes through a purely willed act, the quantity is determined solely by the will of the person transmitting it.

1876. In both cases, the form of power undergoes modification because it no longer exists solely in the person who originally possessed it but also in the person who participates in it.

1877. However, the difference in the two cases means that the modifications undergone by the form of the power, when this is communicated without its being lost to the communicator, are of two kinds:
1. If power is communicated entirely to the second person so that the two persons possess it in solido and equally, its form is changed in one way.
2. If the second person to whom power passes, either through a natural bond or the will of the communicator, receives only a part of it, its form is changed in another way.

1878. A ruler who chooses a colleague and makes him equal with himself in sharing government has changed the form of the power. If he chooses many colleagues instead of one, he changes the monarchy into a kind of aristocracy by an act of will.
The ruler however may communicate only a part of civil power to many of his favourites or fellow officers, making them dukes, princes, counts of cities and particular provinces. In this case he retains the general direction of all these dignitaries, but changes the form of full monarchy into a form mixed with feudal government. Once again he does this by an act of his will.

1879. The natural bonds through which power is communicated to a second person, without its being lost to the communicator, arise from the relationship between creature and creator, son and father, wife and husband. On the other hand, the willed communication of power comes about solely through an act of the communicator's will and acceptance on the part of the receiver.

1880. The first of the three natural bonds mentioned above has its own characteristic. God possesses all power in an inalienable, invisible way so that, when he communicates some of it to human beings, he does not produce a modification of the form of pre-existent authority but creates human authority.

When a father communicates his power to his child, the form of the power is modified. On the other hand, when God communicates power, its form is not modified but produced simultaneously with the power. Before the child is born, a visible form of power exists in the father, but before humanity receives power from God, no particular form of power exists; God is invisible and infinite. In human beings the form of power is proper; in God, power itself is proper. Thus, because there is no government without form and no society without government, society and government are communicated to human beings when the corresponding form of power begins to exist in them. Although this explains the saying that all authority comes from God, we cannot say that human beings possess their authority in communion with God, still less that God remains without authority.

1881. In human generation the father communicates with the child in respect of power and its external expression. The same must be said of husband and wife; they are different members of one body, each of whom acts for the whole, and harms or helps the whole.

1882. Furthermore, a supernatural generation is made known to us by faith. Christ receives power from the Father analogously to the way the human child receives power from his genitor and is made heir of all paternal riches. Christ calls human beings to be his companions as hereditary, adoptive sons. Hence, the origin of visible and invisible ecclesial society. Divine power was communicated to Christ in a natural way that is, relative to the two natures through the generation of the Word and the Word's union with Christ's humanity. The communication of Christ's authority to other human beings is not made by a bond of nature but an act of his will called forth by the likeness of nature.
The great difference between ecclesial and civil society is seen especially in the unique, totally special mode by which ecclesial society receives its form, namely, 1. in generation of the child by the father, and 2. in adoption; in other words, in the union of the two modes natural and willed through which one person's power is communicated to another.

1883. Every change in forms of government peacefully carried out through transference comes about in one of two ways:

1. The person who comes to government either occupies a larger part of the power that was previously unoccupied, or leaves vacant a part that was previously occupied.
2. Power in the hands of a person (collective or individual) passes wholly or in part into the hands of another person whose members differ in number from the first.

1884. The form of government does not change when it passes by hereditary means or in some other way from one person to another if the quantity of power or the number of people receiving the power remains unaltered.

1885. The form of government can be changed by a person who holds absolute, autocratic, civil power either by altering the number of persons possessing the power or by changing the quantity of power itself, provided however that those governed consent either expressly or spontaneously and tacitly, or at least that no jural resentment is aroused in them.

1886. Civil power held by a moral or individual person is rarely limited; indeed, the quantity of its exercise generally increases. The principal reason is that the existence of pure civil power helps civil society. Consequently, when civil power is constituted, it is very difficult to let power decrease: it is either kept wholly as it is or increased by an injection of energy or by extension to new regulations of modality. Changes in the form of governments normally come about therefore either through increase in the quantity of power together with more extensive administration of the modality of rights, or through change in the number of members composing the moral person who possesses the power.
If Alfred's will were to have been understood in the way David Hume and Edward Burke thought,(110) it would have allowed the English, after his death, to choose the form of government they preferred most. This disposition could have caused a change in the form of government relative to both the number of governing persons and the quantity of reducible power. The change would depend on the energy and degree of activity of the new government.

1887. The fundamental laws added to certain monarchic governments do not always change the form of power because they do not reduce or increase authority. They simply direct and clarify it, by ascertaining that the monarch does not exceed the limits of civil power, and by helping him to use it to the greatest possible advantage.

1888. Governmental form changes when the three powers are divided and parliaments are instituted. In this way the different branches of civil authority are really divided.
The form of government is also changed by the addition of conditions which are not simple rules of conduct but agreements whose execution imposes and regulates the people's duty to submit.

1889. Examples of changes in the form of government through every manner of increase or reduction of the number of persons are found in history. Either many persons restrict the power to a smaller number, or one or several persons extend it to many.
In Sparta, the popular magistrate of the Ephori received an increase of authority from the king, Theopompus, who told his wife he had reduced his royal authority to secure it better for his children.(111)
Through the famous royal law the Roman people, by transferring their supreme authority to emperors, deprived themselves of it.(112)

I cannot agree that history offers no example of authority passing from a whole people to their ruler. Whatever our view, the institution of the Roman empire is itself an enlightening, irrefutable example, even if we consider the royal law to be invented by those sycophants of rulers whom we call lawyers. Something similar is also to be seen among the Hebrews. The transference of civil authority from the hands of a people to those of an individual is not at the origin of civil society but of a particular form of government. At the time of the Hebraic and Romans republics, society and government already existed, and did not cease to exist when those republics changed to monarchies; the popular form ceased and the monarchic form began.

1890. Let us sum up the ways in which a people can co-operate in bestowing civil power on a collective or individual person:

1. In the state of nature or domestic society they can co-operate with tacit or expressed fellow-feeling. They permit or help a person (collective or individual) to occupy unoccupied civil power, but do not confer the power. They place no obstacle to power, but do nothing that could make another individual powerful; they simply help the person who wishes to occupy civil government - they are a friend helping another friend to occupy what is unoccupied.(113)

2. When civil society is already established and the people possess the supreme power in solido (as in a democracy), they can transfer the power, despoiling themselves of it totally, either to one person, in which case their action establishes a monarchy, or to many persons, in which case their action establishes a more or less aristocratic form. In each case they are simply disposing of some ownership. They are doing what any absolute ruler can do who, without any conditions, cedes his crown to one of his sons or to a brother or to a body of powerful persons or anyone at all. He is merely doing what every human being can do: donating and disposing of what is his, as he likes.

1891. The transmission of ownership of civil power must not, as we have said, be confused with delegating representatives who exercise power in the name of the owner and in accord with his instructions.
If we confuse the transmission of the ownership of power with delegation to exercise power we fuse two totally different systems into one, that is, the system of social contract.

1892. The most contradictory consequences were drawn from the social contract. From it, Hobbes derived the most horrible despotism exercised by a single person. A century later, the French revolution, and later still the German illuminati, used the social contract to reduce all principalities to the most democratic republics. All this is explained by the fact that the system, although one in name, is really two in substance. I will first speak about what they have in common, which produces the confusion, and secondly about what is proper to each, which allows us to understand their difference.

We begin from the principle that the people are the source of civil authority, and that no collective or individual person can possess this authority legitimately, if it is not conferred by the people. This is the common element of both systems. Their difference is as follows.

In Hobbes' social contract, the people transfer the ownership of civil power to the governing person (autocracy). In Rousseau's, the people do not transfer the ownership, which he declares inalienable, but simply choose persons as their representatives who exercise the authority which they cannot exercise through themselves.

In Hobbes' system the people are deprived of all civil authority, and the sovereign has absolute power. In Rousseau's, the people always remain the sovereign, and sovereigns are their ministers. Hence they can change their ministers, limit their authority as they please, punish them, etc.

1893. Both systems are certainly false, and err from the start by maintaining that the people are the source and natural owner of civil authority. On the contrary, in the state of nature the people have no civil power and do not constitute a social body. In this state, neither civil power nor the common administration of the modality of rights exists. Civil power, which is only possible, is not and cannot be held by anyone. If we consider the people as having taken unanimous occupancy of this power, we have indeed a special, very rare case on which however no general theory can be founded. Occupancy of civil power by the people could never explain the origin of civil society in general, but only the origin of a particular form of government, that is, popular government. This very serious error, common to both systems, arose from a limited view which elevated a particular fact to the level of general theory.

1894. In addition to this common error, each system sins by its own defect. In Hobbes' social contract, the only possible form of government is monarchic. Rousseau's social contract pronounces as unjust all non-popular or representative forms of government.

1895. But if we take from Hobbes the declaration that civil power is an alienable right transferable to another's ownership, and from Rousseau the possibility of representation, civil power can be conceived as having the same quality and character as all other human rights, that is, the person to whom civil power is proper can transfer it or entrust its administration to another. We therefore finish with two forms of government, absolute and representative, which the nations of the world acknowledge today in their treaties.

We should also note that Hobbes' political system springs from a more remote principle: his denial of the existence of justice prior to the social pact. This is a fundamental, disastrous error [App., no. 3].

Notes

(110) The interpretation given to Alfred's will by these authors was refuted by Count von Stolberg in his life of Alfred.

(111) Arist. Polit., bk. 5, c. 11.

(112) Some modern authors maintain that the constitution of the Roman empire was made more despotic through legal formulas. This was attributed to the baseness of a few jurisconsults who lived under the emperors and had been slaves and children of slaves. Be that as it may, it is certain that despotism really existed. Legal formulas, which never cease to be added, are easily accepted, and contribute considerably to the increase and strengthening of despotism.

(113) We see here the weak side of Grotius, which allowed Rousseau to make the following reasonable objection: `Grotius says that a people can give itself to a king. He therefore agrees that a people is a people before giving itself to a king.' Rousseau bases his system on this objection. But I deny that a multitude is a people before the institution of civil society, and can perform acts such as giving itself to a king. A multitude can only consent to whoever wishes to govern it, or concur in the occupancy of the civil power. If however a multitude has already become a people, formed as a democracy, it can give itself to a king, consigning to him the civil power it had occupied.

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