Rights in Civil Society - Section Two
Part One
Possible Elements Of Injustice In Civil Society Considered As Such
2181. In individual Right we considered civil society as a collective person, jurally equal to individual persons, and we indicated the eleven kinds of injustice it can commit (cf. 1647-1688). My intention in this part is to discuss, as I said I would, those proper marks which distinguish it from every other jural person (cf. 1659). I begin by demonstrating clearly how civil society is a jural person equal to but distinct from every other person.
Chapter 1
Two equalities: JURAL and CONSTITUTIVE
2182. Civil society considered under the aspect of an already formed collective person, is simply a subject of rights and duties, equal to every other subject. I call this `jural equality'.
But if, in addition to this general characteristic of jural person, we consider the special prerogatives of civil society, that is, the marks proper to it which distinguish it from every other jural person, civil society becomes unequal to all other jural persons. It therefore lacks the second kind of equality, which must not be confused with the first and can be called `constitutive' or `jural-constitutive equality'. Civil society is therefore a collective person which has jural but not constitutive equality with all other persons.
We said the same about the family, and the same can be said about every other person. Each has some equality and some inequality with all the others: equality in so far as it is a jural person, a subject of rights; inequality in so far as it is a person constituted in its own specific way.
2183. The importance of this distinction can be seen by applying it to possible difficulties about rights. Let us see how the jurist sometimes considers one person as equal with others and sometimes in their constitutive inequality.
In the case of a right contested by two persons, the judge must consider them perfectly equal. He must simply weigh the reasons on both sides, ignoring everything whatsoever that distinguishes the two persons or is proper to them. The reason is clear: the judgment in this case concerns solely the relationship between the contested right and each person. All that they may have and possess through other titles does not enter into the judgment, which can be pronounced even if the judge knows the plaintiff and the accused only under false names.
On the other hand, if a right is not in dispute, but juridically decreed or held in peaceful possession, the problem concerns respect for the right. In this case both persons, the one who has the right and the one who has the duty to respect it, stand before the judge as unequal, because one possesses what the other does not. Any right whatsoever, held by a person, causes inequality in others because it causes duty in them. Right and duty are contrary relationships and therefore unequal, that is, they lack constitutive equality.
2184. Hence all doctrines concerning rights can be reduced to two simple formulas: the first considers persons as equal, the second as unequal. The first states: `Attribute right to the person to whom it belongs, whoever the person may be, because all persons are considered equal.' The second states: `Respect each person in proportion to the rights he possesses', or `Respect all rights in every person.'
2185. Jural equality is the foundation of commutative justice; constitutive inequality, of distributive justice.(274)
2186. Jural equality requires civil society to recognise and respect others' rights just as it requires that its own rights be respected. Constitutive inequality attributes to civil society certain proper rights which must be respected in it.
2187. To attempt to destroy either jural equality or constitutive inequality is therefore a violation of right, because constitutive inequality is also jural, that is, authenticated by rational right.
Notes
(274) Leibniz, in his dissertation De actorum publicorum usu, which is the preface to the Codice diplomatico, etc. (§12), distinguishes three levels in natural Right: 1. Strict Right, which he makes consist in commutative justice; 2. Equity, which he makes consist in distributive justice; 3. Piety or Probity, which he posits in universal justice. He says, `At the lowest level of right (for Leibniz, this lowest level of Right is commutative justice), human differences are not recognised apart from those arising from the matter in hand; and everybody is considered equal. At this higher level (that is, of distributive justice), merits are taken into account with the result that privileges, rewards and punishments are present. Furthermore, even the distributive justice of civil government is rigorous justice, at least when the autocracy of the fathers has passed into other hands' (cf. 2065).