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Rights in Civil Society - Part Four

Chapter 5

How civil society gradually regulates modality of rights ever more extensively

2123. We need to recall what has been said, note where we are, and see what remains to be done.

First of all, we saw the kind of stimuli or needs that moved fathers of families to form civil society. These needs develop, and their growth keeps pace with the development of the intellective and moral faculties of those who associate. This development and growth urges the fathers to perfect their civil association by changing it from temporary, unstable association, weakened through division and dispersion of energy, to strong, stable and perpetual association through unity of power; the fathers move from an association deficient in some organs to the kind of association that possesses all its organs, limbs and civil powers.

2124. We then considered the contrasting instincts of domestic and civil society. We described the long, terrible but providential struggle, past and present, that civil society had to sustain against domestic society, and vice versa. We showed that without the mediation of perfect theocratic society this hostility becomes fatal. Both societies, shaken and laid low by continual vice, finally perish: the conquered through external violence, the conqueror, now alone, through internal corruption.

We observed how the conciliation of family and civil elements could not be achieved through fusion; they did not want to live as one and lose their individuality. Conciliation could be achieved only by reasonably tempering family instinct with civil instinct so that, instead of wanting to rule blindly, both instincts might accept the restraint of reason, of justice divinised by the Gospel.(263) These two wild instincts, now tamed, agreed to respect and even help each other. Family and civil society lived together — the leopard lay down with the lamb, as a prophetic expression has it. The two societies do not fuse but preserve their individuality; although opposite in character, they harmonise and mutually help and perfect each other.

Nevertheless, despite this precious principle of harmonious co-existence and alliance, war does not cease instantly. The blind instincts of the two societies often shatter the peace treaty; every time one usurps something from the other, revenge is sought. But war does not endure because the principal mediator and guarantor of their individual existence is imperishable Christianity. Thus, after war, both societies are wiser and more perfect than before, more distinct in mutual relationships which have been determined with clarity and greater precision.

2125. Finally, we saw that one of the conditions by which civil society attains its ideal is awareness of its limits so that all danger of its entering the sphere of family society ceases. These limits must be determined by the object of civil society, that is, regulation of the modality of its members' rights. Hence the first law constituting the ideal of civil society is, according to us: `civil society must abstain from disposing of the value of rights, and limit itself to regulation of their modality'. This was precisely the purpose of the final struggles we described, that is, `the constitution of an independent civil society which does nothing more than regulate modality of rights.'

2126. The step just described can be reduced to the following: `Civil society, having separated from domestic society, subsists of itself with its own organisation. At the same time, it accepts the equally independent subsistence of domestic society in harmony and friendship with itself.' This mutual recognition of and respect for each other's jural existence helps both by moderating respect for each other's rights. In other words, civil society is limited by this step to regulating the modality of rights. Having grown strong in this legitimate office, the exercise of its responsibility can no longer be torn from it by tyrannical domestic society.

2127. We must now move on to the next step, taken by civil society when exercising its proper office.
The phrase, `modality of rights', which is the object of the office, applies to an infinite number of things. But in the beginning civil government does not see the breadth of this application, and limits itself (it cannot do otherwise) to regulating that part of the modality which it sees.
As we said, civil society is a particular society when first instituted, but later grows and gradually becomes universal (RI, 739-743).

2128. This growth is certainly due to the increase of stimuli and needs. As nations become more civilised, social governments become more aware of the necessity to add new, special and particular regulations to the modality of rights. Previously, this measure was not required.

At first it seems that civil society changes its end at different stages, and even changes into another society. In fact it is only extending its interests in service of the end itself, which is the regulation of the modality of rights. When Louis Haller recently maintained that States do not have a common end but only a complex of ends with greatly differing particular views, he was aware that governments act differently in different periods and social conditions, that is, they apply themselves to obtain certain partial aims which previously did not stimulate their attention. However, he was unable to make a generalisation which would gather all these ends into the one general end which determines exactly the essence of civil association. We have called this general end the regulation of the modality of rights.

We must discuss more carefully this second step towards the ideal of society, an ideal presupposing a society whose concept includes regulation, according to needs, of the whole sphere of the modality of rights.

2129. When many persons with rights enter into a relationship, particularly when they live on the same land, the following can happen:

1. One person maliciously attempts to invade the rights of another.

2. One person believes he is exercising his rights innocently but in fact is harming others; consequently disputes arise.

3. Many persons exercise their rights independently of each other without exceeding the sphere of the rights. They impose on themselves a mutual limitation greater than that which would result from a harmonious agreement between them about ways of exercising their rights, an exercise which would give everyone greater freedom and obtain the greatest benefit. For example, if owners of different neighbouring lands which have no defined roadways agree to define them, they avoid common harm by refusing arbitrary passage to owners or workers with their carts, cattle and implements.

4. Many persons can obtain much more benefit by uniting their forces and ownership to exercise certain rights in common than they can by individually using their forces and ownership. For example, if many unite to provide the wheat necessary for their families, they will obtain better terms through the greater quantity of goods they buy. If they agree to pay for a schoolmaster, they obtain for their children instruction which they could not have if each family had to pay for a teacher of its own, etc.

2130. The four parts of what we call the regulation of the modality of rights are therefore: 1. to defend one's rights; 2. settle disputes; 3 modify the exercise of the rights of individuals either to prevent the harm threatened without such modification, or 4. to obtain a benefit which would be impossible if everyone exercised their rights without regard for the rights of others.

2131. The phrase, `modality of rights', which I use in opposition to right, value or good of right, is defined precisely as `everything that can be done with or about a right without diminishing the good contained in it; this good must pertain inviolably to the subject or owner of the right and either remain equal or be increased.'
Using this definition as guide we can determine the immense sphere of responsibility encompassed by complete, fully developed, civil society as we have ideally conceived it; in other words, encompassed by that society which we have defined as `the supreme regulator of the modality of all the rights of its members'.

2132. The definition indicates that the responsibility of civil societies entails the exercise of four major functions:

1. Protection of all the rights of the members and of the free exercise of their rights.
2. Judgment and settlement of disputes.
3. Regulation of the exercise of rights so that every individual's or lesser society's use of their own rights will, without prejudice to them, leave others maximum freedom to exercise their own rights.
4. Amalgamation of private rights, when this is required to avoid a common evil or to obtain a common good.

A word about each of these four general functions of civil government will not be out of place.

2133. The protection of all the rights of the members and of their free exercise is obtained from civil society by two dynamics:
First dynamic: defence of the members and their rights against culpable attack from individual or collective persons, foreign to the society, — wars, diplomacy, etc.
Second dynamic: defence of the members and their rights against culpable attack by other members.

2134. Both these dynamics can be activated by civil society in various ways, by exercising:

a) The right of prevention in favour of the subjects. In the City, this is normally done through ordinances concerning policing.
b) The right of defence in favour of the members. In the City, the right to punish, preceded by criminal judgments, relates to this right.
c) The right to compensation in favour of the members. In the City, this is preceded either by criminal or civil judgments.

2135. Although the protection of all rights can be exercised in part by authority, good-standing, eloquence and other indirect ways, it can never be deprived of the support of material force. For this reason, society, as we said, must be strong; it must have at its disposition a force sufficient to repress the perverse, and banish fear in the good.

One of the principal advantages obtainable by families from their entry into civil association is the possibility of living without fear of each other. This makes possible mutual benevolence, as well as trust, which replaces the fear which formerly divided them. It is true that this fear, which formerly made families mistrust each other, is now directed against the government, which has force at its disposal, and thus places a very harmful kind of division between citizens and government. But the fear ceases when government gives citizens sufficient guarantees against the abuse of its force, a provision called for by sound politics. The greatest of these guarantees is the formation of an upright, powerful public opinion which dominates material force itself and against which nothing can be attempted with hope of success.

2136. We must however clarify the steps taken by civil society as it gradually embraces each of the four functions mentioned above. Protection of rights (and properly speaking, of their defence) is the first function to draw the attention of citizens and governments because it is the most necessary (defence). It is so necessary that it alone has the power to encourage families to unite. Other civil functions, not so necessary as to call for the institution of society, are useful accessories to already instituted society.

This explains why so many publicists posited the end of civil society solely in the defence of rights without adding other functions. For this reason, it seems strange that the national assembly of 1789 limited the end of civil association to the preservation of rights.(264)

2137. But although no civil association exists which does not propose at least the preservation and defence of rights, there is some development in this very first civil responsibility, precisely because the right of defence extends in step with the development of the human race (RI, 1901-1907), and because the social means of defence become more perfect.

2138. We must note again that, although those whom we have called relative citizens (children of families, and wives), are not per se charged with the common defence, they do have the right of passive, not active defence.

2139. Finally, we must also note that the protection of all rights necessarily includes the protection of all those societies that differ from civil society, and to which individuals have a right (USR, 426-445).

2140. Civil society's first task is to defend associated families against the material force of external enemies, and to defend individual families against the material force of other families.

When the prevalent force in civil society prevents families from using violence against each other by blocking the use of force by private persons, individuals have time and ease to put their case peacefully. Civil society stands between them as mediator either to judge which individual is right, or to arrange an equable agreement in disputes where conclusions are so doubtful or shared that certainty is unobtainable (which is fairly common). In this case the parties have the right and obligation to come to some agreement (RI, 465, 1026).

Hence, this function of civil society is twofold; it has two dynamics because, in order to settle disputes peacefully between families, it must at different times exercise:

a) judgments about decisions;
b) judgments about transactions.

2141. But all this must be done without invading the right that fathers of families have to reach agreement among themselves (RF, 1552-1553). Generally speaking therefore civil society must not intervene officially in family disputes, but limit itself to 1. preventing recourse to force by its members; 2. accepting calls for help from petitioners, or appeals from private arrangements and arbitrations which it either rectifies or executes, if they are just and equable; 3. putting an end to private disputes which involve hatred and which, if not brought before a tribunal in civil society, would go on for too long with harm to families, and more importantly, with harm to civil association itself.(265)

2142. This function implies the following social dynamics:

First dynamic: to remove everything that impedes free concurrence for all goods that can be objects of right, which I have already listed (RI, 1973), such as privileges, customs, prejudices, etc., contrary to free concurrence.

Second dynamic: to provide that, when a person exercises his rights, his actions impose the least possible limitation to others' inoffensive freedom. This determines the ways in which each person can exercise his right.

Third dynamic: to change the form of individual rights, while preserving for the possessor all the good they contain. This is done to obtain a common benefit without harm to anyone; it determines the forms most useful to everyone in which rights must be vested.

2143. The benefit which is the object of the third dynamic can be public or private. Private good, however, must not be procured through a form of privilege so that it is restricted to certain persons or particular classes to the exclusion of others. It must be open to all citizens, granted they are in similar circumstances from which they cannot be excluded by any arbitrary governmental act.

2144. For example: fathers of families, or whoever takes their place, could agree to establish the following law: `Whenever the purchase of part of a neighbour's farm or house is necessary or very helpful to a farmer or house-owner for regularising his own farm or home, adapting it for various uses, or greatly improving it, and whenever his neighbour obviously has little or no interest in maintaining the property in question, the neighbour will be obliged to sell it to the farmer or house-owner for a just and equable price.' Such a law changes the form but not the value of private rights. In fact, I think a time will come when laws of expropriation for a private good will be made, just as laws of expropriation for a public good have already been passed.

2145. This third function of civil society comes to light or develops later than the first two. Even when civil society finally understands that it is called to exercise it, it needs to make still more progress before it discovers the many extra, new, complicated and delicate ways in which it is called to exercise the function.

2146. The end of civil society can also be promoted by placing some rights in common. This amalgamation of rights would seem basically to be the same as a change in the form of rights, the third force of the previous function, because rights can be associated only if their owners suffer no harm or are compensated for all losses either by the avoidance of a greater evil or by the acquisition of a greater good. The third function however is concerned with change in the form of single rights without amalgamation, while our present function concerns the placing of rights in common, in society.

2147. This fourth function divides into the following dynamics:

First dynamic: organisation of the government of society, that is, the power to establish, and nominate to, all military and civil offices.

Second dynamic: administration of the common goods of the State

Third dynamic: imposition of taxes which, with the common goods of the State, are sufficient to maintain and conduct social government. This is the first use of common goods — necessary expenditure for government.

Fourth dynamic: undertaking those enterprises of public good which cannot be assumed by individuals or particular societies. If the enterprise procures a good that is not only public but truly common (that is, for all), civil society can assume it even in concurrence with private individuals or private societies, when it believes it can achieve a greater common good. This is the second use of common goods — useful enterprises.

Fifth dynamic: stimulation of moral-intellective-industrial progress by means of rewards for free concurrence: the third use of common goods - rewards for benefactors of public good.

2148. Civil societies that have existed for a very long time exercise all these five dynamics or divisions of the regulation of the modality of rights. Each division is an immense field for civil progress, by means of which society comes to manage and exercise its energies with increased 1. suitable extension; 2. distributive justice; 3. ease (overcoming obstacles and avoiding distress for the citizens), and 4. effective aid.

2149. These four qualities, which must be present in the exercise of the fourth function, and of the other functions as well, are duties of active civil society.

2150. Supreme civil power, autocracy, has the responsibility to see that its representatives and all who are working for it do not fail in these duties (ius supremae inspectionis [right of overall inspection]).

It will be helpful if I add a few observations about each of the five dynamics mentioned above.

2151. Those who exercise autocracy must organise social government in such a way that a society realises its ideal, according to their vision of the ideal.

2152. It is clear that autocracy, if it is to attain this end, has the right to establish organs and social responsibilities, to nominate to these, and to choose means it considers best. To do this it can establish a set of means, procedures and subordinate powers with which to determine all responsibilities and nominate the people most suitable for them.

2153. Note that in the matter of establishing responsibilities, which are real burdens despite their benefits, they must, like burdens and benefits, be shared out according to the most strict distributive justice. This is a jural obligation of autocracy. Let me take military service as an example.

2154. Conscription, introduced by the emperor Napoleon, is certainly a very burdensome law for citizens. Not content to govern the society over which he presided, Napoleon aspired to conquer the world and used this law improperly. However, conscription in itself was, apart from popular prejudices, a huge step taken in these times by civil-distributive justice. I personally consider it the richest legacy and greatest benefit left us by that great commander-in-chief. If every social good is due to distributive justice, we should not be surprised to find the present power of European nations attributed chiefly to the law of conscription. Thanks principally to this law, they have acquired an insuperable domination over the other larger continents of the earth. Among themselves their dynastic struggles and outbursts of pique have been replaced by a dignified respect which assures peace. Such are the effects of an outstanding law, the kind of good that follows every step taken by society towards distributive justice.(266)

2155. Generally speaking, social autocracy has the right and responsibility to establish the form of government and determine the civil constitution.(267)

2156. Civil society can own (USR, 446-449), like all other societies that do not renounce this right. But it can own only by the same titles as an individual person, and with the same limits (RI, 1663-1665). Its sole means therefore for preventing occupancy of unoccupied things is not an arbitrary decree but pre-occupancy or some necessary measure for defence.(268)

2157. The kinds of good that civil society enjoys are distinguished into two classes:

1. Every good common to every individual (res communes vel publicae), such as air, light, roads, rivers, sea with certain limits, etc. Government is responsible for the defence of these goods, for keeping them common to all and in good condition, and for improving them.
2. Every good of the social body (patrimonium reipublicae). These must be administered by the government with just economy, and their product applied to cover expenses necessary for the good of government and for the proportional benefit of member families.

2158. From the moment fathers are united in civil society, they have accepted the obligation of contributing to the necessary expenses of the society in proportion to their possessions and to the help they receive from the society. Hence government, responsible for social administration, has the right to impose these taxes.

2159. Today the most learned publicists have more or less the same notions about the matter, relative to the general principles.

Pietro Baroli says:

2160. The right to impose ordinary and extraordinary taxes pertains to the so-called eminent domain which society has over the goods of every individual.(270)
But, as Samuel Coccejo excellently observes, we should reject the word `domain' when dealing with society's right to use for its own end a part of the goods of private individuals.(271) The word contains the concept of arbitrary use which the person who has dominion (ownership) can make of his goods. Government however is simply the collector and administrator of the common contributions for the end of society.

The principle gives rise to the following two limits of the right to collect taxes, which we have already mentioned:(272)

1. The contributions must not exceed the need of the social end.
2. They must be equably distributed in proportion to the citizens' abilities.

2161. Consequently (and this is admitted by publicists), if the governing society, in immediate need of means, has no time to distribute the portions according to ability to pay, it must remedy this misfortune as soon as possible.

2162. For example, the harm inflicted on the citizens by a government pursuing a just war must be distributed among the citizens as soon as possible, and restitution made for those who contributed in excess of their obligation, taking into calculation also the consequent harm.(273)

2163. Furthermore, modern societies are still very far from solving the difficult problem `of the equable distribution of social responsibilities. They do not consider the distribution of responsibilities a jural, but a political or economical problem. We may well ask: `Which distribution of social responsibilities helps a government most in its administration, or makes the responsibilities felt less by the majority of the citizens, or by the most powerful citizens, so that no one complains? Which distribution is more conducive to the production of wealth?' But before all these questions, we should ask another which is certainly more humble, but much more profound, sacred and helpful to society: `Which distribution of social responsibilities is more just?' Justice, poor neglected justice, is precisely what statesmen often disdain to face. They do not oppose it; they simply understand it differently, take it for granted and ignore it. It contains however the secret of the best way to govern and of all public prosperity, as the long history of the world already begins to reveal.

2164. Many nations prefer indirect taxation. The reason is clear: taxpayers are less aware of what they contribute; governments rely on people's ignorance to make them pay. Here, I must admit, the political problem fulfils one of its conditions, but the jural problem becomes more and more complex, even perhaps insoluble. It is probably impossible to regulate indirect taxation in such a way that it is ultimately distributed according to the norm of distributive justice, that is, according to the citizens' abilities. A people, well instructed about its interests, would not want greater indirect taxation, because it would at least want to know whether taxation were equably distributed, which indirect taxation would never allow. On the other hand, the people would not refuse to contribute directly what they saw was necessary and obviously distributed according to strict justice.

2165. In Right we can and must ask: `Does taxation have to be shared in proportion to the capital or income of the citizens?'

I am of the opinion that annual taxation must be inflicted on income. This is certainly more difficult, but we are not free to substitute one problem with another, simply because one is easier and the other more difficult. My opinion rests on the necessary presupposition that annual taxation is paid with a portion of income and not with capital.
The case of forced loans or other extraordinary taxation is different. These, it seems, would have to be paid from capital.

2166. Civil society was not instituted to undertake some particular utility but, as we said, to regulate the modality of rights. The protection and facilitation of all the enterprises of the citizens and of other societies are directed to this end.

2167. Hence civil government acts contrary to its mandate when it competes with its citizens or with the societies they form to procure some particular utility, and even more when it reserves to itself the monopoly of enterprises which it forbids to individuals or their societies.

2168. On the contrary, the more civil societies relinquish enterprises and leave them to private activity, which they must protect and encourage, the more closely they approach their ideal. We can safely assert that in this matter at least, greater progress in civilisation is made by a government that procures more public good through the spontaneous action of individuals and of the private societies it protects, and distances itself from leadership in such enterprises.

2169. Nevertheless civil society has the authority to undertake of itself the useful enterprises which could not in any way be successfully attempted by individuals or private societies. This is the only case where civil society can properly undertake such enterprises without exceeding the sphere of the modality of rights. In doing so, it is not removing or obstructing the freedom of individuals and the possibility of concurrence, that is, it is not depriving them of any valuable right. Citizens, who have instituted civil society as a necessity, not a superfluity, want government to do only what they themselves cannot do.

2170. A hope that individuals or private societies undertake certain useful enterprises, may be vain, not because the nature of the enterprises makes such undertaking impossible, but because individuals and private societies do not attain the level of ideas, ability and activity necessary for these enterprises. If this is true, civil society (the government) will take care to increase in the citizens the abilities they still lack. It can provisionally initiate some private enterprises, for example, provided they cede them as soon as individuals should themselves be ready to undertake them.

2171. This is a supremely civil duty. It unites the citizens better, and is universally profitable at the least cost, that is, the cost of the rewards.

2172. I note, relative to this duty, that a deplorable confusion of ideas and a manifest injustice would result if the rewards consisted in honours and privileges which facilitated the acquisition of social posts by those who had won them without becoming more suitable for them. For example, to offer a ministry of State as a reward to a person who had killed his enemy would expose the society to having a murderer as minister.

2173. The sphere of activity of civil government is large, but does not embrace all responsibilities at the initial stages of its institution; some responsibilities become known as the centuries pass. As civilisation develops, public opinion invites civil government to concern itself with ever new and greater things, but always within the sphere of the modality of rights.
Civil societies pursue the road of progress in regulating this modality by recognising the continually new demands it makes on them and the new responsibilities necessary for bringing such regulation to perfection. Necessity and public demand require more and more assistance and activity from governments.

2174. This progress has in some way an opposite effect to the kind described in the previous chapter, where we saw how progress of civil societies towards their ideal continually keeps their action within the sphere of modality. In this chapter, we have seen progress that continually extends their action from one object to another, from one responsibility to another, within the same sphere of modality of rights. This sphere is narrow for primitive societies, but immense for societies that have attained great perfection.

Notes

(263) This discussion of family and civil instincts is very similar to the discussion we had elsewhere on instinct of ownership. We showed that ownership as instinct is raised to the dignity of right only when it is tempered by moral reason which commands it not to harm the same instinct present in others (RI, 921-959).

(264) `The end of every association is the preservation of the natural and imprescriptible rights of man' (Déclaration des droits de l'homme et du citoyen).

(265) The institution of private judges is not therefore a usurpation of a right of civil society. If however private individuals begin to sanction such judgments with external force, both responsibility and right exclusively proper to the City would be usurped.

(266) It could be asked: `According to rational Right, must citizens contribute to the army in proportion to their social contribution?' The answer, it seems, must be `Yes'. How then is the burden of conscription distributed equably? I reply: in civil society, every material effort and danger can be calculated in money. A soldier's value can be given in terms of money. Granted the law of conscription, therefore, families who are not involved ought to contribute financially to compensate other families who, in addition to their contribution to society, send their sons into the army.

(267) Note carefully that autocracy is not, in my opinion, a form of government but the radical power, or merely-social or invested power (USR, 312-313), which gives rise to different forms of government. Autocracy is present in every form of government because the first and radical power, from which the form itself of government receives jural authority, has to be present somewhere in every form of government. For this reason Heeren's division of the forms of government into despotism, autocracy and republic, would seem to be very mistaken.

(268) Certain authors attribute to civil society the right to prevent foreigners occupying unoccupied land in the society's territory. In my opinion it can do this only if it occupies it in reality or by a just title of defence. Cf. RI, 514.

(269) Diritto naturale pubblico interno, §193.

(270) Some authors distinguish between the right to impose taxes and eminent domain. They say that by the former, society disposes of a part of the incomes of private individuals; by the latter, of the substance itself. This is a frivolous distinction. The citizen who pays taxes can calculate the amount on the income or substance of his goods, which does not change the nature of the right of the society imposing the taxes. The so-called eminent domain is the society's faculty to dispose of that part of the goods of individuals which is necessary for its end, whether this is a part of the income or of the substance itself of property. If `tax' means an ordinary, regular contribution, it is in this case a special act of what is incorrectly called eminent domain.

(271) `The voice of the master is not well used in commands' (H. Grot., bk. 3, c. 20, §7). Grotius also writes: `Nor do they [government] have any right, other than that of rule, over their subjects' money,' and Coccejo comments: `which consists in the right to defend, not destroy the subjects' goods' (ibid., Grot., loc. cit.).

(272) By `tax' I understand whatever private good social government is required to use for the end of the society.

(273) Grotius teaches that `the City is obliged to indemnify from the public purse the harm done to those who have lost their possessions. Both the public itself, and the person who has suffered harm should, if necessary, contribute. The City is not relieved of this responsibility if at a given moment it cannot pay the money. Whenever resources are at hand, a kind of dormant obligation awakes' (De iure B. et P., bk. 3, c. 20, §7). Henry Coccejo explains: `One citizen must not be more burdened than another, because all are equally obliged to defend the State. The extra burden imposed on a citizen must be paid back from the treasury or by public contribution' (loc. cit.). Nevertheless we must not confuse harm caused by enemies with that caused by the government through the necessity of war. The latter harm, not the former, should be distributed by social government.

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