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Rights in Civil Society - Part Four

Chapter 3 - (1st Part)

The steps by which civil society comes into being

1917. We must sum up and then go on to show how civil society continuously progresses by extending the sphere of its objects.
First, we defined civil society as `society which aims at regulating the modality of all the rights of its members in the best possible way.' This abstract, general definition is sufficient to determine the duty of civil society in all its extension, and contains the principle which establishes the limits of its government.

We then asked: `Do civil societies always in fact include a sphere as extensive as their aim? Do they always regulate to the fullest extent the modality of all the rights of its citizens?' The answer was `No'. Nascent civil societies are ignorant of the immense frontiers of their own territory; they push forward almost accidentally and constantly discover new regions. Their advance is proportioned to the needs of new insights which arise as social ages evolve and higher reflections are formed by those who govern and those governed. People never form civil society nor multiply the objects of their government without being moved by determinate stimuli.

Next, we began to speak about these stimuli which, we said, were in general the needs that instigate human activity. We concluded that `civil society could neither commence prior to the operation of needs instigating human activity, nor reach its most perfect organisation and fullest exercise except in proportion to the greatest impulse given to families by the action of increasing needs.'

At this point, we wanted to expound the way in which the activity of civil societies was stimulated and extended by needs. First, however, it seemed necessary to remove an obstacle from our path.
Some authors, by exaggerating the jural necessity of the City, seemed to claim that right, divided from the City, was impossible. According to them, civil society would have to exist de iure from the origin of humanity; the slowness of its progress would have to be considered as barbarous and alien to right. At this point, we showed that as nature gradually provides efficacious stimuli moving people to constitute and perfect civil society, so the law of Right imposes the obligation of civil society suitably and gradually at the appropriate time. Thus, the progressive de facto order relative to civil societies harmonises with the progressive de iure order. There are as many jural states as there are stages in human development. Some of these states are anterior to the institution of the City; some pertain to the incipient City; some to the City as it progresses towards greater unity and constantly expanding activity in the exercise of its power.
We can now take up the thread of our argument and explain the needs which successively require the work of civil commonalty and bring it by stages to ever greater perfection.

1918. Domestic society, in its restricted form with a single father, or in a more ample form with several fathers under the command of a supremo (patriarchal society), waged war prior to the formation of civil society. It also cultivated alliances with other domestic or even civil societies with which it found itself in contact. Thus Abram fought against the four kings(134) (an example of domestic society at war with civil society), and made a peace treaty with Abimalech, king of Gerar and with Phicol, head of his army.(135) Later, Isaac did the same.(136) Similarly, Jacob made an alliance with Laban.(137) In those early days, domestic society was sometimes more powerful and flourishing than civil society, and more to be feared. `Go away from us because you are much mightier than we are,'(138) said the king of Gerar to Isaac, a simple father of a family.

1919. An extraordinary cause was needed before a domestic society, which could per se flourish and prosper, would decide to associate with others in civil commonalty. There were two possible causes: 1. the desire to offend other societies by subjecting and conquering them; 2. the need of defence against the assaults of other societies.

1920. The first cause, if it cannot be reduced to the second, is normally unjust (RI, 680). It does not therefore furnish a jural occasion for the formation of the City. This, however, is the history of heroic undertakings in antiquity, and of bands who went sword in hand to places most suitable for them in the midst of peoples whom they subjugated and in great part destroyed.

1921. The second reason, that is, the need for legitimate defence, is therefore a good jural occasion furnished by events for the formation of primitive civil societies.

1922. But the need of defence is of two kinds: 1. the need of internal defence, within society itself, on the part of one member against another, and 2. of external defence on the part of one society against another.

1923. The need for defence within domestic society is seen very rarely. Nature gives sufficient guarantee to all members in their mutual natural affections. Moreover, such a need cannot be an occasion for establishing civil association.
A need for defence on the part of one member against another is certainly seen in the interior of civil society. However, because civil society has already been formed, this need draws citizens to make society perfect, not to constitute it. The same is true about the need for external defence of one civil society against another.
We conclude that the efficacious, jural stimulus, which moved fathers of families to come together in civil commonalty is the need for external defence of the family, that is, the need to defend one's own family against other powerful families, or against an already established civil society.

1924. In fact, the establishment of one civil society must have called others into being. Otherwise, the disassociated families would have been subject to the danger of harsh treatment, and brought under the yoke of families already civilly associated and thus more powerful.

1925. It follows that fathers were forced to bind themselves together more strongly and stably as they felt greater, more serious and more constant danger of harm which threatened their goods or freedom.

1926. I say `more constant' because the need for external defence, if transitory, is not sufficient stimulus to fully constitute civil society, that is, a lasting aggregation of families (cf. 1630-1639). Associations of families do indeed exist for the sake of eliminating momentary danger, but they are destined to cease activity as soon as the danger has passed. In fact, they are not so much civil societies as attempts at civil society, unformed sketches, trials, rudiments of civil society, or mere alliances. History shows that associations of this kind normally precede the formation of lasting society.

1927. We need to ask, therefore, what are the de facto circumstances in which danger and the consequent need of defence is truly constant and consequently capable of impelling people to establish some means of constant defence. We also need to know what kind of circumstances present only momentary dangers, and lead to temporary proximity and groupings without any stable, lasting union of families.
Two circumstances need consideration: 1. violence which conquers or dominates; 2. the ordinary life of co-existing families. We shall examine both these accidental features to see when they produce continual or momentary dangerous circumstances.

1928. As soon as some violent person takes steps to subject others to his power, a stimulus to union is felt both by the person attempting violence, who cannot take on the masses single-handed, and by those attacked as they prepare to defend themselves.

I. Let us suppose that the violent party triumphs.
In this event, seigniory, not civil society is constituted. Nevertheless, seigniory in this case is necessarily followed by some form of civil society.

1929. The degree of imperfection in this kind of civil society goes hand in hand with the degree of domination found in the seigniorial element.

1930. Civil society arising from conquest is formed either by the conquerors alone, or by the conquered alone, or by both.

1931. Only in the final case is civil society well formed; only in this case does the seigniorial element have less effect and absorb less of the social element.

1932. Civil society is constituted by the conquerors alone when the conquered people are considered slaves, or divided and dispersed, bereft of civil rights. If servitude breaks even domestic bonds, the jural state of the people relapses to the state of nature. This does happen unfortunately, and has occurred several times in history.

1933. If the seigniory of the conquerors is less burdensome to the conquered, it becomes necessary to consider the state of the people at the moment of conquest. Either the people were still in a state of domestic society, or existed as a tribe, or were already in the state of civil society.

1934. In the first case, the people remain in the same jural state of family or tribe as that in which they were found. The family itself, however, and the tribe are the slave of the conquerors. This was the state of the Hebrew people in Egypt under the oppressive Pharaoh Amenophis when the heads of tribes and kin governed with the fathers of families.

1935. If the conquered people is already ordered towards civil society at the time of conquest, the seigniory of the conquerors is found at two levels: it either totally destroys every civil bond between the families of the new people, or it leaves the people in the state of domestic society. If the seigniory is milder, the conquered people retains some civil unity, and indeed draws closer together; it conserves either wholly or in part its laws, customs and religion, and simply lacks supreme civil power. Some rudiment of civil society remains, therefore, amongst this subjugated people, but in servile, not free civil society (USR, 112-122). It is very different from the civil society formed by the conquerors amongst themselves.
The conquests of the ancient Eastern peoples offer examples of all these different degrees of seigniory and corresponding servitude. Sometimes the conquered people are totally dissolved and only individuals remain (enslaved); sometimes the people remain, but divided into domestic societies (enslaved); sometimes they remain in imperfect civil societies (enslaved). The Hebrews in Babylon are an example of the last case.

1936. The varying degrees of servitude found in conquered peoples is explained by the status of the conquerors. These did not form civil societies, but dominant families. Consequently, they tended to establish seigniories, not societies. The family(139) draws seigniory in its wake; civil society draws society. Whenever a family conquers, the conquered people remain as bond-servants.

1937. If we consider civil society formed by the conquerors amongst themselves, we find that it also exhibits less perfection when dominated by the seigniorial and domestic element, and more when it absorbs and swallows the social element.

1938. This explains the distinction between conquering families, and conquering individuals.
The family was fully constituted in the East, and conquered without itself breaking up. It produced empires in which practically everything was seigniory; there was very little society. The opposite occurred in colonies. Unions of young bachelors, associated in order to found a city wherever it suited them best, did not draw any family element in their wake. They began with the foundation of civil society itself. They always established republics, that is, true societies, and only societies. This happened even if the marauding groups were under the control of a single person.(140)

Later these adventurers, who needed to find wives amongst the conquered people, had to associate with the people, not destroy or enslave them. At the same time, they could not trust the people who, given the chance, would certainly have ejected the violent, unjust foreigners. Fear of the conquered people must have endured for a long period in a newly-established colony. This was a permanent cause of unease and a constant danger which only lessened and ceased as races inter-married and attacks arose from common enemies. Conquerors and conquered soon fought together in the same war, defended the same cause of common defence, sought and received repeated pledges of brotherhood. In these circumstances, the stimulus of lasting need occurred which, as we saw, is necessary to induce human beings to form true civil societies characterised by stability and perpetuity. This stimulus is not necessary to the same extent for the conservation of civil societies after their formation.

1939. II. Our supposition is that the assailants conquered. This was almost always the case in antiquity. The reason for their success is obvious. The attacking side was prepared; the defenders unprepared. The latter, trusting in their long period of tranquillity, had been lulled into inactivity by natural, habitual inertia accustomed to peace. Nevertheless, we could imagine the contrary, and allow for a vigorous, triumphant defence. Here we already have a first stimulus to the union of families. The constancy of this union depends, however, on the length and obstinacy of the war, or the arrival of continual new dangers. It could happen, if the union necessary for maintaining one's own freedom and safety lasted a long time, that a people might be glad to preserve the union after the conflict had ceased. Or, during the conflict (and this is more likely), the ambition of some fortunate, talented commander-in-chief might lead to his becoming lord or civil head. Finally, the gratitude itself of the people could make head and ruler someone who had saved them on several occasions from extermination in battle. One example of this is the Hasmodean family who remained at the head of the Hebrew people after the long and glorious wars they sustained in defence of religion and fatherland.

1940. Setting aside the case of conquest as the result of passion for dominion or need to subsist, we normally find families living together in peace. Hostilities are rare exceptions, motivated for the most part amongst younger people by accidents such as insults, rivalry and love. Motives of this kind usually produce wars of only brief duration. They are not sufficient to stimulate the formation of civil constitutions which require perpetuity.

1941. Nevertheless, they often produce temporary alliances and associations which are rudiments and, as it were, attempts made by nature to produce civil society.

1942. Civil society begins from a bare outline and gradually arrives at full maturity unless some extraordinary accident impels it more quickly to maturity.

1943. Civil society can be imperfect either
1. because it is not yet fully constituted — essential imperfection; or
2. because the exercise of its powers is not fully activated — accidental imperfection. We shall show in the following chapter how this exercise is gradually activated. Here, our intention is to explain how civil society is gradually constituted.

1944. We note immediately that the constitution of civil society remains imperfect for three reasons: either
I. it lacks perpetuity, that is, it is not instituted in a perpetual manner; or
II. it lacks unity; or
III. it lacks total power. Let us consider all three imperfections.

1945. Some nations began to arise without any permanent need for the defence of which we have spoken. In these nations, the union of families in positive associations under a governmental power took considerable time to achieve a stable, perpetual character. Families remain at a kind of half-way stage between the family state and that of civil society, and vacillate between these states. Outlines or sketches of civil society appear, disappear, and reappear according to accidental needs.

1946. In the history of the Hebrew people the period of which we are speaking is that of the judges who were chosen for a time according to the people's needs. As long as the families and tribes descending from Jacob had no external enemies to fear, they lived together without a common government.

1947. A similar state of imperfect civil society, marked by lack of continuity and permanence, was found amongst the Germanic nations before they settled in Roman territory. They chose a chief to lead them in their wars. When these came to an end, all common government ceased. The families, or groups of families, returned to life in domestic or tribal society. The tribe is simply associated agnation, a kind of man-made domestic society.(141)

1948. In this period, when families or tribes co-exist (granted the circumstances we have described) and bring civil association to birth gradually and painfully, some attempts at imperfect association appear. The reason for this imperfection is lack of unity in the government that is being constituted.

1949. In the period of Hebrew history prior to the institution of the monarchy (the period we have mentioned), civil power appears divided. In his will Jacob had divided the power, conferring primogeniture on the sons of Joseph, priesthood on Levi and rule on Juda.(142)

1950. It seems that the primogeniture conferred on Joseph and the rule conferred on Juda were the seeds or principles of unity that the dying patriarch intended to sow amongst his sons. Primogeniture was to be the principle of unity as long as they and their descendants remained in the tribal state. This was in fact their condition during the one hundred and ninety-nine years they spent in Egypt after the death of Jacob; Joseph and his tribe probably prevailed during this time. Rule was to be another principle of unity. It was to be developed later when the people were formed into a perfect civil society through the choice of the kings. Jacob had clearly foreseen this, as Moses had after him when he wrote the law of the future kingdom one hundred and fifty years beforehand.(143) The priesthood was the principle of permanent unity which was to unite all the descendants of Israel whatever their social state.(144)

1951. The organisation of powers was still deficient during the time of the Judges, except for the stable priesthood of the tribe of Levi. Levi's priesthood supplied what was lacking to the other powers on the occasions when they organised themselves for a time on the basis of temporary need.

1952. It does not seem necessary to note here that the unity of the social mind and the governmental power of which we are speaking is not a material, but a formal unity. Powers, even when divided amongst many individuals, possess unity when they are ordered in fixed relationships and dependency that allows them to produce one single complex action.

1953. Finally, in the period of time that humanity uses to pass from the state of domestic society to that of fully formed civil society, history presents us with attempts at society amongst families. The efforts do not result in a full form of civil society because part of the power essential to that society has not been actuated.

1954. When Moses and Aaron received the responsibility of leading the people out of Egypt, they had not yet occupied the fullness of civil power, but only military command and political representation before the Egyptians. Soon Moses became the judge in the people's litigation. He then took possession of another branch of civil authority. The people's need was the stimulus leading to acknowledgement of his judicial authority, which was simply the exercise of public beneficence. Later he became legislator. When he chose rulers, tribunes and other chiefs over the people, he made use of his authority to constitute lower magistrates.(145)

1955. Moses' power ceased with his death; Josuah was only a commander-in-chief. The judges who succeeded him exercised various offices according to need.

1956. The period in which humanity struggled to escape from the straits of domestic society and expand to civil commonalty has attracted very little attention from philosophers. They seem not to have noticed the supreme importance of meditation on this moment when humanity passed imperceptibly from one state to another. Instead, they have been content to consider the state of domestic and civil society as if they appeared suddenly, fully complete and formed. They have limited their considerations to the fact of civil society as it exists in this Europe of ours, hoping to find its causes and origins in some hypothesis springing from philosophical imagination.

1957. The opposite is true. This extremely complicated fact that makes up our societies cannot be understood, explained or judged unless we consider intensely and profoundly the slow, varied work of human nature which produced it over many centuries. In a word, the theory of society must not be drawn from the unfertilised egg of a mere idea standing before the mind. History, with its extremely varied accidents, administers the conditions and positive data which, changed by the mind into possible conditions and data, can become suitable materials for constructing the theory.

1958. For the moment, we can draw some consequences from what has been said. They will show both the possibility and the immense importance of this kind of historical study.

1959. The first consequence: it is a mistake to believe that nothing lies between civil and domestic society. Over and above patriarchal society, which is an expanded domestic society containing several fathers and families who obey their living progenitor, we have the tribe. This we have defined as `a man-made patriarchal society, formed within the same agnation', that is, a feigned, patriarchal society between cognates and agnates.(148)

1960. Moreover, it is possible to conceive a long series of formless civil societies which are such because they lack the essential factors we have mentioned: 1. perpetuity; 2. unity; 3. totality of powers.(149) In the same way, a civil-servile society is also without form because it lacks supremacy, an essential characteristic of perfect civil society (cf. 1625-1629).

1961. Finally, a civil society reaches its full constitution, at least relative to its essence and integrity,(150) if, besides tending de facto and instinctively to regulate ONLY the modality of all rights to the common advantage, it has formed for itself `a clear consciousness of its office and, after that, has acknowledged it as a fundamental written law.' This is what we await from future ages.

1962. Meanwhile, we remind our readers that if this is true, it must also be true that civil society cannot attain its full, perfect constitution unless political Philosophy has first presented the theory to the mind. Political philosophy must first separate the various elements mingled together in human societies and attribute to each its own jural law. Above all, it must with most scrupulous care separate from the seigniorial element what belongs to the social element. Then it must separate what pertains to the socio-civil element from everything belonging to other social elements. Finally, it must establish with unshakeable evidence that `the supreme necessity of regulating the modality of all the rights of the members is the sole function of civil society.' This is the clear principle we inscribe in books; from books it must pass into peoples' heads and from there into their constitutions. All this, however, can only be the work of time, which passes quickly, and of the uprightness and civil wisdom of legislators as well as of those whose love is the boast of their fatherland and of humanity.

1963. Another consequence of supreme importance is this: the major obstacle preventing humanity from associating perfectly and peacefully in civil commonalties is family selfishness.

1964. This selfishness is the great evil proper to domestic society. Every society, every human institution has its own characteristic evil. Domestic society, founded on the father's seigniory, impresses the minds of the children profoundly and naturally with the concept of paternal seigniory. The concept of a man-made society such as civil society is not present to children from the beginning. When it does appear, its presence in their minds is weak; it may endure, but it is not the object of reflection and consciousness for some considerable time. All members of domestic society naturally operate according to the more lively model present to their minds, in this case, seigniory. The development of this principle is then confined to an endeavour to increase seigniory of the house. Thus, as we saw, empires and despotic governments spring from families.

1965. Love of family is sui generis, and immensely different from friendship. Through friendship, the friend forgets himself in his sole care for the other; through love of family, human beings do not forget themselves, but confuse themselves with others.
Love of family is also different from social benevolence, through which individuals love the collective body to which they belong for the sake of their own advantage; they are looking to their own interests. Love of family is not a calculation, but a simple instinct of nature.

1966. Through love of family, all blood-relatives belonging to a family form a single feeling-person. This single feeling is followed by an intellective calculation that in turn flatters and ministers to the feeling. In a word, love of family is an extension and reinforcement of individual self-love. It is love of self which results from the fusion, in each person's feeling, of many self-loves. As such, it is rendered proud and bold through each member's consciousness that their common force is directed by a single idea, in this case, seigniory.(151) Hence, slaves were always considered by the ancients as part of the family, and very few authors before ourselves were coherent in teaching that so-called patronal society is not society at all (RF, 969-981). In fact, it was normally discussed under the heading `socio-domestic Right'.

Universal affections (humanity) are extinguished in the family in proportion to the intensity in which blood-affection increases. The human heart is restricted and restrained; the smaller the number of members composing domestic society, the larger the number of strangers towards whom it tends to act unjustly.(152) The injustice is slight because the family possesses only a small quantity of force with which to exercise injustice.

1967. This narrowness of domestic society was felt so deeply by Cicero that the great man could uncover the origin of justice only by further extending the society of which the family is such a restricted form. He expresses his thought best of all perhaps in the noteworthy passage where he speaks of the universal love of human beings. He describes it as

Cicero acknowledged justice on earth only when the love born within the heart of the family was propagated to all mankind. On the one hand, the pagan cannot rise above himself to conceive how the dignity of the individual, the foundation of justice, must be recognised even in the state of nature; on the other, the Roman, released from the straits of family, is capable of understanding the beauty and holiness of universal society.

1968. The enclosed nature of the family, the close union of a few separated from the many, the succession through generation of those bound together, is most suitable for preserving true and erroneous religious traditions, as well as useful and damaging, or good and bad customs. In turn, traditions and customs are new bonds drawing the family together and continually dividing it from other families. Families with different errors and vices easily hate one another, but they also develop unbelievable animosity, jealousy and emulation simply as a result of diversity of indifferent customs, and through the different forms with which they cloth the same feeling, the same thought. Families separated for a long time also develop their own dialects and languages which then become a new wall of division cutting them off from strangers, and a new bond uniting their own members.

1969. All these causes coalesce and render difficult the formation of lasting, perfect union between several families or tribes, that is, an entire civil society. Consequently, this kind of association is never wont to occur fully in a peaceful way. It needs some extremely violent accident either to move and pressurise families in acting against their own will to overcome many powerful obstacles, or to destroy and disperse families themselves for the sake of associating individuals.

1970. Nevertheless, humanity could not accomplish its destiny unless it succeeded in associating in civil groups. Providence, which leads mankind, undertakes to fight invincible selfishness, the obstinate spirit of independence, tenacious customs, inveterate prejudice, superstition, ignorance and the absolutism of families. It opposes these obstacles with tremendous force that often shakes the foundations of the family; it humiliates the family, breaks it up, tears it to pieces. These fragments then become suitable, purified material for the construction of a new, majestic, harmonious edifice of civil association in which mankind moves on, more united and free, towards its great end.

Providence, you see, is fully justified; it has a reason for arousing every now and again those warrior-geniuses who as conquerors devastate the earth before them. They are necessary for clearing the land on which will rise the edifice of civil society, a wider, more instructed, more liberal, more progressive society than domestic society, which is no longer sufficient.

1971. Careful examination of these ways of Providence will show the results of conquests from Sesostris to Napoleon, from Ghengis Khan and Tamberlane to the French revolution, from the Crusades to the European colonies in the New World. Without any exception, all the upheavals, sufferings and strife that humanity has had to suffer from the immense destruction and violence of wars and revolutions were directed by Providence to this tremendous end: to severing narrow, family restrictions and conquering the immense opposition which families maintain against the perfect formation of civil society, through the strong, excessively selfish constitution that unceasingly encloses and fortifies them. If humanity is to progress towards all good, civil society must be bound into mankind.

One does not have to assume the role of prophet to predict with certainty that these furies, who lead the hurricanes passing through nations like whirlwinds through fields white with the harvest, will reappear whenever certain families, developing according to their internal instinct, reach the stage of selfisolation, independence and separation from other families that blocks the unbroken journey of mankind, led by God. The opposition caused by the family must be conquered, and will always be conquered. At least the most recent event, the French revolution, should be considered attentively under this aspect by the reader.

1972. Allow me to add a few lines to the preceding digression. They will serve as a corollary, and answer the following question: `How can stationary peoples in a family or tribal state be led to civilisation if their civil society is still imperfect in some parts?'

1973. The knot of the difficulty has been clarified, I think, by what has been said. It is the old, hardened family which is opposed to progress. Like the snail, it uses its own secretions to build up for itself an ever harder, more impenetrable shell. The shell has to be broken, but not by ferocious conquests whose inhumanity can only be praiseworthy in the light of Providence. I have no desire to diminish the abhorrence and infamy called down on monsters who delight in shedding infant blood, reducing widows to tears, and bringing despair to the eyes of little children, old beyond their years. The problem is simply this: how must a Christian government act when it has the noble mission of bringing to civil life those generations of families who have surrounded themselves with the hardened shell of opinions, customs and man-made but extremely tenacious affections which form family morality or feeling? How can all this be accomplished, for example in the case of Arabs or Bedouins, through just, human means?

1974. The Romans, faced with this consideration, would have divided the men, women and children by transporting the men to settlements, providing the women with husbands from some other group, and giving the children a Roman education. Such violence might have served its purpose, but it would not cease to be unjust and cruel.

1975. This treatment could be partly justified only if it were considered a punishment for repeated rebellions, which could not otherwise be prevented. There is no doubt that Arab betrayal would be repressed efficaciously if the French decreed by law that

`Any tribe which broke faith and rebelled, after submission to France or bound to her by just agreements, would be punished as follows:

1. Unmarried men would be separated and put at the disposition of the French.
2. Polygamy is abolished. One wife, the first he had married, would be left to each married man. The other wives would be considered as unmarried.
3. The French arrangements for unmarried men would be these: a) young children of both sexes would be given a Christian education; b) young men would be transported to the colonies; c) young women would also be transported to other colonies.
4. Succession would be determined by law.
5. Rewards would be given to those who make progress in civilisation.'

1976. Penal laws similar to this, which represses rebellion in entire tribes, could be drawn up to punish faults on the part of families, as follows:

`1. A family convicted of unlawful communication with the enemies of France would be broken up as indicated.
2. Any married man gravely wounding a Frenchman would be deprived of all his wives except the first. If he had only one wife, he would be deprived of his children, who would be educated by France. If he were unmarried, he would be deported.'

France could make other peaceful ordinances in addition to these civilising but criminal laws. These ordinances would have the same aim of weakening the concentrated force of the Arab family. Nevertheless, the surest and most powerful means is always the preaching of the Gospel, followed, and not preceded, by instruction in the sciences and arts.

1977. The family, isolated over a long period and concentrated on self, acquires blind, selfish and internal affections which produce indefinable abhorrence and aversion towards other families, as well as envy, permanent hostility and obstacles to civil association. These things cannot be overcome except through the destruction of the family itself. Nevertheless, as we said, the family is the essential element of civil society. It must exist, but with expanded boundaries; blind, family instinct must be tempered by the intelligence presiding over civil society.

1978. We see this in European civilisation. It would not be far from the truth to say that the cause of civilisation in Europe is the mixture, in the right proportions, of family and civil elements.

1979. These two elements first had to be formed and instructed separately from one another; then they had to be suitably mixed. This was the design and work of Providence.

1980. After many partial, accidental vicissitudes, mankind came to be divided into two great parts called the Roman and barbarian worlds. Providence destined the barbarian world to educate and strengthen the family element; the Roman world to form and educate the civil element.

1981. The family element could certainly not grow and reach perfection in total separation from all civil society. Hence the presence in the midst of the barbarian world, charged with perfecting the family element, of imperfect, civil societies which, without impeding the strong development of the family element, contemporaneously protected and seconded it.

1982. Even less could the civil element exist without the domestic societies which it brought together. Hence the Roman world had families, but regulated on the model of the republic and in total agreement with the republic, whose growth they served; they were devoted to it and often sacrificed to it.

1983. The time came in which the two worlds had completed the work assigned to each by Providence; one had brought the family to full strength, the other had drawn civil commonalty to full development. All that remained was to mix the two elements so that the fusion resulted in mutual moderation, not destruction. The outcome was a twofold, harmonious bonding of the human race which had not previously been seen on earth.

1984. This was a divine work. Some superior force was necessary for such an important fusion; some wise, beneficent mediation was necessary if the battle between the two elements was not to destroy either one, but bring about mutual acceptance, as brothers finally recognised one another after long separation and infinite, blind discord. That mediation was carried out by Christianity; the work was done through the fusion of the Germanic and Roman races.

1985. The time was ripe; change was necessary for the salvation of the world. Corruption amongst the Romans had almost dissolved marriage. Augustus tried in vain with laws and penalties to force citizens to marry. The Germans, still showing signs of Eastern tendencies, were constituted in families and tribes.(154) They were aware of seigniorial right [App., no. 4], but had no permanent city. Their unity was weak and imperfectly governed.

1986. Christianity, the great mediator, took under its protection the two elements represented by the two races. By strengthening and sanctifying marriage through the sacrament and the Church, it prevented the loss of family society in Roman civil society. It conquered the powerful chiefs of the northern families who invaded Roman territory at the head of their barbarian neighbours. When these chiefs became sons of the Roman Church, they learned from their mother to prefer civil, peaceful government to military, family government. Through this sublime, powerful mediation the two races, successfully grafted together, were able to form a single race which inherited the good elements proper to each. These elements were now immensely increased, and assured in perpetuity.

1987. Without the work of Christianity, the struggle between family and civil elements would have been fatal for both races; the isolated elements, battling to the death, would have mutually destroyed one another. Christianity, however, restored marriage to the Romans and persuaded the Germans to accept civil living. The discord between the two races diminished, to be replaced by harmony in which each saw in the other the good things it required. Each was sufficiently instructed to know what it needed, and what it was avidly searching for. Otherwise, the barbarians would have taken only dissoluteness from the Romans; the Romans would have received from the barbarians only military anarchy in which civilisation perishes.

1988. This fusion between the races could not take place immediately. Religious influence needs time to make itself felt in the masses and produce its marvellous effects. At first, it seemed that the inrush of one race upon the other would disrupt all social bonds by simultaneously destroying the barbarian family and plunging the Roman City into anarchy. The effect, however, was wonderful beyond all hope. The barbarian family suffered a severe blow, but Christianity used this to render civil association easier; Roman government fell, but Christianity used its fall to render domestic association easier.

1989. The Latin pagus was ordered towards civil society; the Germanic gau was a seigniorial administration. When Roman territories were invaded by Germans, it was natural that the Roman regions should be ruled as German gau. Government was in fact in the hands of counts. The outcome was incipient fusion between the seigniorial and social elements.

The Roman inhabitants of the pagus were highly imbued with the preceding concept of social order which dictated their reasoning. This concept, firmly fixed in their minds, was a model in strong contrast with the German gau and government by counts. A people en masse cannot change the concepts it normally uses as standards of judgment with the same readiness and ease that it applies to words and social conditions. The opposite was true in the minds of the German counts who, dominated by the concept of the gau, had to apply it to the Roman pagus according to the same psychological law. They had to regard the pagus as a seigniorial matter because that was the concept directing their gau, which they wanted to introduce into the newly acquired regions.

The same can be said on a larger scale about kings and their subjects, and about all conquerors and conquered peoples. A common political language sprang into being because the conquerors imposed their own language as far as they could, while necessarily absorbing, albeit unwillingly, a part of the language of those they had conquered. But the shared language, which was gradually formed, concealed to a great degree the diversity of concepts as well as preventing or reducing the open struggle between them. The two sides, although appearing to agree in the use of language, held very different ideas.

Meanwhile, their common belief gave each side the time to modify its own ideas by associating them with those of the other side. It is altogether impossible for masters to govern without assimilating some part of the ideas of their subjects. They cannot rule alone if subjects do not co-operate in making government effective, or at least if subjects do not obey. Masters and subjects have to understand one another if they wish to live in peace. Inevitably, therefore, they must form for themselves not only a common language, but a common thought.

1990. The castellans, that is, officials who administered the territories indicated by divisions into kingdoms and duchies, were equal in authority to counts. The offices of count and castellan were in the beginning rewards distributed by barbarian kings to their gasindi or table companions (anstrutiones). Later these offices were given to vassi or vassals, and to other meritorious personal retainers who formed a kind of sacred legion around the king in time of war.(155)
Similar benefits were given to other meritorious members of the royal family who were first called beneficiaries and later, about 1000 AD, feudatories.

1991. Kings and feudatories were heads of seigniorial families. They governed to the extent needed for the preservation and growth of the greatness of their own families. But because the element of Roman civil society had remained in people's minds, the multitude had other truly social requirements to which it was even more sensitive. Roman social hierarchy had been destroyed at the top, but it could not be entirely destroyed at the base. The stones forming the base had shifted, but not perished. These foundation stones were the communes.

1992. a) First cause: the Catholic Church.
The Church took the communes under its protection because it always favours the social element as supremely human, moral and Christian.

1993. The Church also contributed indirectly to re-ordering civil society after its overthrow by the families who invaded the empire:

1. By supporting morality, instruction and all peaceful practices amongst conquerors and conquered. This was a necessary prelude to the quality and dignity of citizens, for which these people were destined.
2. By defending the weak communes against the injustices and arbitrary cruelties of the feudatories.
3. By freeing slaves, who were declared before God equal to other humans and led, little by little, to external freedom. In addition the way was left open for them to attain the highest social offices as a result of their being admitted without distinction amongst the clergy.(158)
4. By the crusades, which weakened family power and extended trade.
5. By the struggles generously sustained against the vice and overbearing force of certain German emperors whose tyranny and lust were refrained to the advantage of the Church, of freedom and of public prosperity.

1994. b) Second cause: the insufficiency of seigniorial government.
As I said, masters `governed to the extent necessary for the preservation and growth of the greatness of their own families'.(159) This government, which did not extend to everything and did not satisfy all needs, made it necessary for people to help themselves. Thus a social element, separate from the seigniorial element, was preserved and tolerated first as a kind of abuse but later as a necessity. As we saw, `need is always the stimulus which makes families resolve to contract bonds of a civil character amongst themselves.'

1995. The principal office of civil-social government exercised by counts, marquises, viscounts and in general the heads of the dominant families was that of judge.(160) However, they were unable of themselves to exercise judgment in everything and in all places because:

1. often they were too ignorant;(161)
2. their real interest was in retaining the executive power (imperium, districtionem). They were indifferent to the result of judgments in private controversies, provided the people were satisfied.(162)

Consequently, they were often glad to leave the skapins(163) and other jurisconsults, or even all the freemen, to take part in these judgments.(164) This meant leaving part of this branch of social government to members of the people.

1996. Moreover `the barbarians generally left to the conquered peoples the faculty of living according to their native law. Consequently, some of the skapins, natural judges in every legal decision, had their roots in Roman law, and could be called as expert judges on law and on litigants in legal cases or, as we now say, in litigation.'(165)

1997. We should note here that almost all the regular clergy were governed by Roman law, and had considerable influence in such judgments. The clergy, natural protectors of the civil-social element, thus acquired new influence from the need to assign it a considerable part in judicial power, which is a branch of civil power.
We should also note, however, that for the same reason many judgments of this kind were left to the people, even amongst the barbarians. The master, provided he preserved his imperium, was not enthusiastic about taking upon himself the task of attending to litigation amongst his subject families, and was quite happy to leave any such decision to them. Cibrario says very aptly:

1998. For these reasons, the seigniorial government of the barbarian families was insufficient for the needs of the conquered people, and even for the conquering, governing families themselves. There was no way in which a certain civil element could be totally driven out and eliminated from the seigniorial element. Indeed, it was soon necessary to call it in aid for common needs. In addition, the insufficiency of the barbarian-seigniorial-family government, which was obvious in the ordinary state of things, was also felt ever more noticeably in the case of war.

1999. Now

2000. Moreover, Genoa, Pisa and other cities, especially those in Provence and Italy,

To these circumstances, altogether favourable to the preservation and restoration of the civil element which at first had been oppressed by the family element, we have to add the need felt for Roman law by the conquering families for the formation of their own greatness. Their own laws, sufficient for their prosperity as nomad families on their native soil, were insufficient from the moment that the barbarians, enriched by cultivated lands, understood the right and advantage of Roman territorial ownership. Hence, `the barbarians preserved Roman ordinances relative to agriculture'(169) and found themselves having to forge their own laws in other matters according to the example of Roman law.

2001. c) Third cause: trade which enriches many plebeians.
We ought not to believe that all the better families of the conquered people were eliminated. Some(170) remained as foundation stones suitable for the later construction of communes.

2002. Soon trade arose, which enriched many plebeians. New fortunes were so many that they necessarily attracted a part of government to themselves according to the law, which I indicated elsewhere, `of the equilibrium between ownership and political power.'

2003. Man-made wealth, as we said, is the indispensable means for the formation of civil society. Trade, as the means of enriching families amongst the people, brought in its wake the bond necessary for their union. Anonymous communes took on a name, became powerful and later dominated.

2004. d) Fourth cause: the oppression suffered by the civil element from the seigniorial element of families.
Seigniorial government, progressing in accordance with its nature, weighed ever more heavily,(173) and at first experienced no resistance to its desires. The conquered were oppressed, downtrodden and grateful to be alive. But they revived, as it were, from their moribund condition, and for reasons we have already explained gained a good part of the government which lordship found impossible to manage. In addition, they were enriched by trade, and united more closely in community. At this point, they began to oppose injustice with force which itself became offensive and unjust as it increased.

2005. The consequence was a renewed struggle, more bitter than before, between civil and family elements.

1. Cities arose against the dominant families.

2006. But we should follow this struggle in another description given by the same author. The length of the following quotation need not deter us. The particular facts of history are, we believe, necessary as additional proofs of our theories which are themselves founded on historical events.

2. The peasants rise against the dominating families.

3. The popes, to defend the mutual relationship between civil society and the Christian religion, favoured freedom for the communes.

2007. e) Fifth cause: weakness of the dominating families as a result of divisions and other accidents.

1. The struggle between minor and major feudatories.

2008. 2. The struggle between sovereigns and feudatories.

In their turn, the nobles fought with the rulers:

2009. Many lordly families were weakened or extinguished during the Crusades. It is true that a few of the very rich were strengthened but these, by becoming quasi-centres of society for lesser nobles, reduced the isolation of families and inserted a broader principle of society into less narrow-minded, savage families.(188)

f) Sixth cause: the weaker members' need of the already strong civil element as a defence against the strong and violent.

2010. The civil element was preserved by the causes we have described. It grew in the municipalities and became a power alongside family power. At this point, the weak found it more advantageous to appeal for help to the civil power, and gather under its standard. This in turn rendered the civil element stronger and freer.

2011. 1. Population in the communes was increased by people fleeing from feudatories.

2012. 2. Lesser lords fled to the communes for protection against the oppression of the greater families, and thus reinforced the communes.

2013. 3. Sovereign families favoured the communes for their own defence against the power of the greater feudatories.

2014.

2015.

Notes

(134) Gen 14.

(135) Ibid., 21.

(136) Ibid., 26.

(137) Ibid., 31.

(138) Ibid., 36: 16. — We have described the steps by which peoples pass from the state of nature to that of civil society in Rights of the Individual, 1052-1057.

(139) The family is of course a mixture of society and seigniory. As society, it is limited and cannot extend except through generation; seigniory can extend without limit.

(140) Cf. SP, 371-391.

(141) The tribal state differs from that of civil society because the power recognised in the tribe is not limited to the regulation of the modality of rights as governmental power is in civil society. The chief holds the place of common father and exercises a dominion similar to paternal dominion. The bonds are those of agnation, another distinction between tribe and civil society. The respect and obedience given to the chief of the tribe is referred to the dead father whom he represents.

(142) 1 Chron 5: 1.

(143) Deut 17. — Jacob's division of primogeniture, rule and priesthood amongst his son is already a great step towards the state of civil society. According to domestic traditions, these powers are normally included in primogeniture. The first-born, besides taking all or the greatest part of the inheritance, also exercised household priesthood, and received some part in paternal rule. Jacob, however, took from primogeniture (the basis of the tribe) its principal attributes, that is, rule and priesthood, and thus, by enlarging the bonds of domestic and tribal society, laid the foundations or seeds of civil society.

All that remained for primogeniture was the right of inheritance to a double portion. Five centuries later, Moses restricted paternal authority still further with the law forbidding fathers to pass primogeniture to sons who were not in fact first-born. (Deut 21: 16-17). Again, the first-born exercised the priesthood before the Levites did (Ex 13: 2; 34: 19; Num 8: 16), although Moses soon introduced the levitic priesthood according to the ordinances laid down in Israel's will. Domestic and tribal society were modified in this way, and lost force and compactness to the benefit of emerging civil society. — Moses also considerably decreased paternal authority, even relative to the right to punish sons (Ex. 21; Lev 20: [2-3]; Deut 21: 18-21).

(144) The majority of the teachers came from the tribe of Simeon.

(145) Ex 18: 25; Deut 1: 15.

(146) Judg 8: 22-23.

(147) Jahn, Archaeologia biblica, §216.

(148) I have shown elsewhere (RF, 1134-1139 and RI, 1340-1348) that jural cognation exists in nature as long as `cognates remember and feel their cognation nourished by their mutual treatment as cognates'. We need to indicate this here to explain how the totality of mankind does not see itself as a single tribe, although they have all come from a single first father.

(149) The lack of stable organisation injures simultaneously all three of these conditions, that is, perpetuity, unity and totality of powers.

(150) It would be possible to distinguish the essential from the integral parts of civil society. I would prefer not to deal with this subtle distinction here, however. It will not help to clarify our concepts.

(151) We describe the family as it is per se in mankind. It would be wrong to object on the basis of the family as it is formed and educated in our own civil societies. In these families, a great number of feelings are present foreign to those of the family itself.

(152) SP, bk. 1, 179-189.

(153) De Finibus, 5: 23.

(154) `In times of peace there is no common magistrate; the rulers of regions and country districts formulate right for their own subjects' (Caesar, De Bello Germ., 1: 12).

(155) L. Cibrario, op. cit, bk. 1, c. 1.

(156) An essentially social authority.

(157) Ibid., c. 3.

(158) `The priesthood and the liberal arts were precisely the two gateways through which it was possible to abandon the servile condition and rise in dignity. A bond-servant who appeared suitable to receive the subdiaconate was bought by the bishop and made a freedman. A tax-collector wealthy enough to pay for his child's education could hope to see him a teacher of grammar, a notary, or a judge of the sacred palace, that is, an approved jurisconsult. At this stage, it was easy for him to be freed from every trace of servitude, provided there had been no deceit' (Cibrario, ibid., c. 2). — Christianity, after proclaiming the equality and essential freedom of all human beings, also influenced their external liberation in many different ways.

Such methods of liberation, carefully mustered, would provide fine material for a book. For example, in some places all a bishop's slaves had to be freed on his death. This was the ruling of the Council of Chelsea, 806 AD, in England. The Council was composed of twelve bishops from various provinces, and presided over by Wulfred, archbishop of Canterbury. In the Council or Parliament of Attigny on the Aisne, called by Louis the Good in 822, it was ordered that slaves worthy of the clerical state should be publicly declared free before ordination. In certain monasteries, slavery was regarded as contrary to the Gospel. St. Theodore, the celebrated abbot of the Studium monastery on the outskirts of Constantinople, offered the following counsel to his monks before his death (826 AD): `You will not have any slaves as your personal or community servants. They are human beings just as you are, made in the image of God.'

(159) `The rulers governed only their own affairs. They dealt with their subjects' affairs merely to the extent that such matters impinged upon their own' (C. L. Haller, Ristaurazione della scienza politica, Introd., c. 5, note. 2). These words of the celebrated publicist characterise exactly seigniorial government, but are never applicable to civil government, which can be exercised very well even by a single person (monarch). The capital error of Haller's unduly restricted theory is his failure to recognise the difference between seigniorial right and social right, and his application to civil society of ideas that pertain solely to seigniories.

(160) `They were also called "judges" from their principal office, and are consistently indicated in this way in the laws of the Lombards. Judiciary was another name for a count's feud' (Cibrario, ibid., bk. 1: 2).

(161) `The counts should have been familiar with the law, but as soldiers were only too often illiterate. A legal decision of 874 AD was signed by Heribald, count of the sacred palace, qui ibi fui et propter ignorantiam litterarum signum sancte crucis feci [I was present and made the sign of the holy cross because I was unable to write] (Chron. monast. Cassaur. Script. Rer. ital., t. 2, part 2)' (Cibrario, ibid.).

(162) Hence the opinion of some historians who maintained that only the skapins were judges, not the count. `This view is given great weight by a legal decision of Hunfred, count of Rietz, in 807 AD. In question was a manso, or plot of land, which had been taken from a certain Hrotelm, according to Hrotelm himself. After the witnesses had been examined, the count asked the skapins for their decision in the matter. But they said: "We judge according to the witness of these men and according to your enquiry, and so on" (Goldast, Rer. Alamann, t. 2, p. 62)' (Cibrario, ibid.) `This single example,' says Cibrario, `seems to be contradicted by the tone of many other decisions.' On the other hand, he at least confirms something that is highly likely: that is, the lord often acceded to the feeling of the skapins and other men of law in private affairs of this kind where he had no other interest than seeing that the litigation was generally accepted as equitable.'

(163) The sworn skapins `represented the commonalty of freemen from every city or land. Their other common name was `judges' because their chief office was to assist the count in his legal decisions' (Cibrario, ibid., c. 2). `The skapinate also contained a municipal element in so far as it represented the people in their relationship with the judges. The skapin was an official of the people who helped and invigilated at the royal palace. It was to the skapinate that the descendants of the ancient decurion families were often elevated after the difficulties of the first occupation. In fact, after the new organisation of the communes, `skapin' was the name given in France and elsewhere to those who in Italy were called experts or counsellors or savants. It is true that the same name does not identify an office, but there does seem to be some analogy here' (Cibrario, ibid., c. 3).

(164) `The count, the judges, the vassals, the skapins and franklins all had the right to ask questions during cases. However, there does not seem to have been any regular form of voting; everything was decided through acclamation' (Cibrario, ibid., c. 2).

(165) Cibrario, ibid. [App., no. 5].

(166) Cibrario, ibid., c. 3.

(167) Cibrario, ibid.

(168) Cibrario, ibid.

(169) Cibrario, ibid.

(170) `There is no doubt that many of the greater Roman families were exterminated or sent into exile at the first barbarian onslaught, especially under the Lombards. But many remained. I think it a serious mistake to believe that an entire rank of citizens was destroyed. The patriciate certainly had no further legal existence, but in losing everything that had made it hateful, it retained the prestige that arises partly from birth and partly from wealth. Unable to do harm, it was certainly able to help' (Cibrario, ibid., c. 3). — Vesme and Fossati, Vicende della proprietà in Italia, etc., Turin, 1836.

(171) Cibrario, ibid., c. 2. - Eichorn, Origine della Costituzione delle città tedesche, in Giornale di Giurisprudenza storica, t. 1, p. 241.

(172) Cibrario, ibid., c. 4.

(173) According to Cibrario, `the lands and persons of tax-payers were burdened by innumerable calls upon them. The condition of franklins and servants of the glebe was deplorable. As we have seen, they were like mere machines used for the cultivation of one plot of land or another' (ibid.).

(174) Chron. Novalicens. Rer. Ital, t. 2, p. 2, 760.

(175) In 1070 AD, according to the chronicle of Fruttuaria; in March 1091, according to the chroniclers of Asti.

(176) Cibrario, ibid.

(177) Cf. Goldstat., Rer. Alamann., t. 1, p. 1.

(178) Cf. Goldstat., ibid., p. 30.

(179) Wachsmuth, Révoltes et guerres des paysans du moyen âge.

(180) `From Peter Pilori, found guilty of conspiracy, in Tarantasia from the rock above, against the nobles and Lombards, a fine of sixteen small gold florins'. The account is rendered by Hamlardo Gerbais, general treasurer of Savoy, 1386-1387 and by Peter Ducis, treasurer of the count of Savoy, 1390.

(181) Cibrario, ibid., c. 4.

(182) Geoffrey, Storia dell'alpi marittime, bk. 7.

(183) Cf. Corio.

(184) Cibrario, ibid.

(185) Cibrario, ibid., c. 4.

(186) Cibrario, ibid., c. 4

(187) Ibid.

(188) `Even where lesser landowners had preserved their fiefs, they were less isolated than had previously been the case. The possessors of great fiefs became centres around which the smaller owners grouped themselves after coming to live there. During the Crusade, an effort had been made to follow the richest, the most powerful, and to receive help from that source. The lesser nobility had lived with their chief, had shared his fortune and with him had run the same risks. When the crusaders returned home, they lost neither this sociableness nor this habit of living with their superior. Just as the great fiefs increased after the Crusades, so the owners of these fiefs held greater courts in their own castles and had around them greater numbers of nobles who kept their own domains, but did not reside in them. The extension of the great fiefs and the creation of a certain number of centres of society in place of the dispersion which had prevailed until then are the two great effects of the Crusades in the heart of feudalism' (Guizot, Histoire de la civilisation en Europe, etc., lecture 9).

(189) Cibrario, ibid. c. 5.

(190) Cibrario, ibid.

(191) Cibrario, ibid.

(192) Cibrario, ibid., c. 1.

(193) `In the royal archives of the Court.'

(194) Contrats entre la maison de Savoie et les princes étrangers, fol. 662, Arch. Camerale.

(195) Ibid., fol. 477.

(196) Cibrario, ibid., c. 8.

Chapter 03 (2nd Part)

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