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Rights in Civil Society - Section Two

Chapter 6

Injustices in society

2205. Finally, injustice can be in society itself, not in its government, nor the forms of its government nor the persons who have usurped power; it is present during the formation of society, in the pacts and laws that posit society in being.

2206. It tarnishes the relationship between the social body and individuals, whether members or not.

2207. An example of an injustice by society towards non-members would be refusal of membership to certain individuals in order to oppress them by an unjust seigniory(277) — legalisation of the state of slavery.

An example of an injustice towards members would be authentication of an illegitimate seigniory among the members — legalisation of the state of excessive servitude.

2208. The first example pertains to extra-social Right; the second, to social Right and, properly speaking, to the part we have called communal right (USR, 151).

I will discuss these examples of injustice at greater length because they are also violations of individual freedom, but I think I have said enough in various places of this work [The Philosophy of Right] about civil society's violations of the right of ownership.

2209. The conclusion of Caligula's argument, drawn from the analogy between shepherds and princes, was that either kings must be gods, or people beasts. This conclusion contains two monstrous errors proper to pagan societies: 1. human beings can possess other human beings in the way a shepherd possesses a sheep; 2. governors of civil society have this right.

The first error shows the extreme degradation to which the human race had fallen; man had mentally rejected his own dignity. The second comes from the first, provided we add to it the incapacity of minds, unenlightened by the Gospel, to distinguish between right and its modality. This distinction requires great development of the faculty of abstraction. Because this development was lacking prior to Christianity, people necessarily confused just with unjust servitude (more commonly called slavery),(278) and slavery with subjection. They applied their false ideas about servitude in domestic society to subjection in civil society: subjects were slaves, the ruler was head of the house, and any evil he forwent was attributed to his mercy. Without any opposition, he granted himself divine honours, going further than Caligula's alternative, whose two members, he maintained, were simultaneously human beings made beasts and rulers made gods.(279)

2210. These absurdities will not surprise anyone who knows the nature of humanity apart from the Gospel. What is more surprising is that even in modern times servitude has been confused with subjection. Rousseau's principle, `Human beings are born free, and are everywhere in chains', shows this. Grotius himself did not clearly see the distinction between civil government and domestic seigniory, thus preparing the way for Rousseau to refute it. If civil government involves slavery, or even simply legitimate servitude, it can easily be demonstrated that the social contract is the only just way to form civil society, because the servitude of adults never exists outside the family without a contract (RI, 554-557). Like Hobbes before him, Rousseau, who had formed a similar concept of civil society by drawing it from a classical prejudice, could not avoid his social contract. Poor Grotius, who had agreed with the concept of society, was mistaken in allowing some other possible origin. Everything shows that Rousseau did not see the distinction between power over rights and power over the modality of rights; he finds no difference between a father's power over his family(280) and that of a head of civil society over the people.

2211. This false principle is the cause of the contemporary mania for republics. Certainly, if civil society had power over citizens' rights, the only tolerable governments would be republican; indeed, extreme democracy would be the only just form of government,(281) and this fact alone would render governmental power inalienable. Expressed simply, civil society would not be possible; the human race would have to remain in the state of nature.

2212. Similarly, it is absurd that human beings have a pure right of command, totally independent of any other right. The right of command, as such, is proper to God alone,(282) and supposes a different nature for superior and inferior. Relative to human beings, to command solely for the sake of commanding would be stupid, and would serve no useful purpose. Only in God can a command, as such, be just and wise, because in him it is an end in itself, and obedience is a real good for the person who obeys (RGC, 540-631).

2213. Hence, the defect through lack of precision in the words of a well-known author: `Every society is founded on the right to command, and on the duty to obey. Remove these, and you have destroyed the very idea of government.'(283) The ambiguity of these words is destructive if the purpose of the command is not added. The human right to command comes from other rights. I will explain this more clearly.

The moral foundation we have laid for human rights is the primitive law, which is independent of human beings and intimated equally to us all from the first moment our reason develops. It states simply and forcefully: `Do harm to no one.' This is promulgated universally by reason without regard for the circumstances of any particular human being: `Do harm to no one, even if you have to suffer evil for it or lose some good. Evil may not be done to others whatever the benefit hoped for.' Hence, the intangibility of rights (RI, 1641-1703). To remove from human beings what is joined to them through the bond of ownership is to harm them; their ownership and rights must be left intact. But if these rights are to remain intact, human beings must submit to certain ordinances enacted by other human beings. For example, the only limit to our right to freedom should be that which is necessary for others to exercise their rights. This limit means that many must submit to a single will (social will) so that freedom neither expands nor shrinks capriciously. Hence the obligation we all have to allow a single mind to regulate the modality of our rights for the greatest common good, and also the duty to obey, with the corresponding right to regulate and command.

This duty of obeying one's fellows is the duty of imposing on oneself that submission to others which is necessary for effecting the respect due to their rights. It is the duty of imposing a burden (if it is a burden) on self, even of suffering something, whenever necessary, for the preservation of others' rights.

Hence, on the one hand we have the right to use our own goods and regulate the modality of others' rights, and on the other, to allow others to use their goods and regulate the modality of our rights. In civil society, this is the right to command and the duty to obey reduced to its basic form.

2214. This duty of persons to obey, which is necessary if other persons are to have free use of their rights, is not founded in other persons but in the rational law, which is in God. Hence, both the natural duty to obey and the natural right to command come from God.

2215. The absolute right to command, which pertains to God and to those he has sent, differs from the civil-social right to command, which properly speaking is simply the right to use one's own goods and to regulate the modality of others' rights. The difference can be better understood by noting that the right to command is by its nature positive, whereas the right to use one's own goods is by its nature negative. The right to use one's own goods is relative to things; our attention is not directly on persons relative to whom we are, as it were, in a state of inaction. The absolute right to command, however, concerns persons directly and pays no attention to things, which are not the formal object of this right.

For example, a government promulgates health orders to preserve the country from a contagious disease that has invaded foreign soil. Obedience is obviously necessary. The right to command therefore is acknowledged in the government, provided it is distinguished from the pure right to command. The government has the right to declare what is of common benefit, safeguarding the rights of all. Such a declaration must be respected because 1. rational law teaches that rights must be fully respected; 2. there must be someone to declare how they are to be respected; and 3. this is the person (individual or collective) who legitimately occupies this office, that is, those authorised by the government.

In civil government, therefore, the right to command can be reduced to the right to declare what kind of modality of rights is more suitable for the good of all; it can be reduced to the right to obey the duty — which in fact exists prior to society — to follow that modality of our rights which better suits the good of our fellow beings. When human beings pass from the state of nature to that of civil society, the difference undergone by this duty is merely accidental. In the state of nature human beings have to observe that modality of their rights which they judge more suitable. In the state of civil society they have to observe the modality which social government judges more suitable. This judgment therefore takes the form of a command; the duty to follow the more suitable modality takes the form of obedience — only the form is changed, not the substance.

Obedience to the natural law, which commands respect for others' rights, is therefore always imposed upon human beings. The civil right to command is simply the right to impose respect for this law. It is not contradictory but necessary for natural law to have fixed interpreters among human beings. Interpreters become, as it were, a talking law, according to one definition of civil heads of nations.

2216. Those who positively denied the existence of a supreme being would certainly direct their attacks against the natural law which shines in all minds and is the foundation of civil power. But those who lacked only an explicit knowledge of a God could know and feel the obligatory force of the natural law, which would never cease to reveal itself in their hearts. Finally, those who thought that knowledge of the rational law is knowledge of God himself would be victims of the platonism which spawned so many heresies in the Church, and still insinuates itself today in the writings of good, meticulous, but short-sighted authors. The rational law is divine light indeed, like the form of truth itself, but human beings need something more to conceive an infinite, supreme, real being — he who sees the light does not always see the sun.

2217. Having rejected slavery and the pure right to command. I will say a few words about legitimate servitude.

We need to distinguish between hard and gentle servitude. Subjection, servitude, slavery and subjugation of any kind are frequently confused concepts. Let us separate them from each other.

2218. When the human race presumptuously exalted itself, it did two things: it put itself in place of 1. the rational law, and 2. God. Both kinds of self-exaltation resulted in undue, illegitimate subjection.

2219. The strict notion of legitimate servitude is the right of one human being over the actions of another.

2220. This kind of servitude is limited by the law of moderation which must govern the use of one's right: `Human beings must use the thing over which they have right solely in conformity with the end to which the thing is ordered by its nature.'

2221. According to this law:

1. The actions of a bond-servant can never be directed to an evil end. A master cannot command unlawful actions of a bond-servant.

2. The actions of a bond-servant can be directed only to the preservation of human nature, not to its destruction or harm. A master cannot command his servant something seriously harmful to bodily health, and must allow what is necessary to preserve it.

A human being in the servile state suffers no positive evil, but is impeded from that greater good which he could gain by his own actions if able to direct them to his own advantage.

2222. Human beings however are not always able, nor wish, to make good use of their actions. Hence servitude is a real good for those who through ignorance or malice might use their actions evilly, and is indifferent for those who would not know what to do with their freedom. Perry says: `Muscovites readily sell themselves. Montesquieu adds that he knows the reason: their freedom is worthless.'(284)

This is true not only for a nation but generally for all barbarians, who have little sense of their freedom. The Anglo-Saxons willingly sold themselves and their children throughout their history.

2223. Barbarians, who did not really value freedom which had little worth for them, needed an appreciable time to value it in those for whom it was worthwhile. The Goths who took Rome under Alaric did not know what to do with their prisoners and sold them at a very moderate price. Later however they were better able to assess bond-servants taken in war and sell them according to the value of their abilities or even retain them for their own service.

2224. It would be very desirable if all human beings were able and wanted to make good use of their actions; if they did, their freedom would acquire great value. This is one of the steps forward that the world is taking, and it is a supremely beneficent action to urge all people to it. But we must not deceive ourselves and think that freedom is truly an equal good for all, or even a good. The author of Christianity pointed out the way to all freedom in the axiom: `The truth will make you free.'(285) This short statement expresses the art of making human beings free. Let them receive the truth whole and entire; let their minds be enlightened and their hearts set at rest; then they are capable of governing themselves. At this point freedom is very precious; now all human beings have a right to it.

Voltaire says,(286) `If there is disagreement about some human condition, people in that condition must decide which state they prefer' (RI, 610); in judging others, it is a great mistake to apply one's own thoughts and desires to them. There have in fact always been people who preferred servitude to freedom, who felt moderate servitude to be a good, not an evil. For this reason, the Hebrew law foresees the possibility of bond-servants, after seven years service, refusing the freedom offered by the law. If servitude were equally burdensome for all, the world would not have swarmed with bond-servants; they would not have shown love nor the heroism of fidelity and sacrifice for their masters, nor would masters have shown the greatest affection for their bond-servants.(287)

2225. While the incapacity for using one's freedom can make servitude opportune, wanted and desired, vice can sometimes justify seigniory. A famous author said rather harshly: `The human being is too perverse to be free.'(288) Recourse to the vices of oppressors is certainly not enough to explain the servitude under which a great part of the human race laboured before Christ; we have to take account also of vice on the part of the oppressed. Unfortunately the majority of the human race had to be kept in chains so that humanity would not destroy itself. Social organisation was hard and rigid; iron stays held together a building that was threatened by ruin and had many times been torn apart.

2226. The ignorance and wickedness of bond-servants make hard servitude legitimate. If they had ability, obedience and intelligence, the master would not be forced to use such a strict discipline. But his hardness cannot be arbitrary; it must be determined by the most exact, necessary justice.

2227. Servitude is also hard when it is perpetual. The hard characteristics are therefore: 1. strictness of discipline in order to keep bond-servants to their duty; 2. perpetuity of service.

2228. Christianity was unable to abolish hard servitude at once because bond-servants were as wicked as freemen. Its first occupation was to improve them.

2229. The Hebrews distinguished two kinds of servitude: hard and light. But care was taken that neither should exceed the laws of justice and humanity - the institution of the sabbath particularly favoured bond-servants. God often reminded the Israelite people about the slavery suffered, and permitted, in Egypt so that they might understand from their own experience how burdensome it was to be oppressed by work.

Servitude was hard or light depending on whether bond-servants were Hebrews or foreigners.

Hebrew bond-servants, who were more instructed in the divine law, more affectionate towards their brethren among whom they served and more apt for freedom, did not need rigorous discipline. Consequently, their servitude could be less hard. The law prescribed that if a Hebrew, forced by poverty, sold himself to another Hebrew, that is, sold his labour, the purchaser must not treat him as a bond-servant but as a mercenary and settler, and must in the jubilee year free him and his children, and let him recover the possessions of his ancestors.(289) Furthermore, it was forbidden to send him away empty; the master had to provide him lovingly and fraternally with flocks, wheat and wine.(290)

Hebrews however could keep foreign male and female bond-servants in perpetuity and hand them on by heredity. Gentleness was not prescribed for these, perhaps because it was impossible to exercise it, granted their lower morality.

2230. Punishment by imprisonment can be reduced to the concept of hard servitude. Indeed, houses of forced labour and prisons for those justly condemned to life imprisonment are simply places where bond-servants are subjected to the hardest servitude. The difference between this and hard servitude is simply the title: instead of a title of sale, let us say, the title is that of crime committed, a title that makes the servitude harder without changing its nature. The guilty are real bond-servants of society, which has a just title to govern, bind and apply their activity to some particular work (RI, 1995-1999).

2231. Except for the servitude to which some individuals are personally subject, long standing Christian nations no longer need servitude. After eleven centuries, those who were bond-servants were capable of freedom. In 1167, religion, by means of Pope Alexander III, promulgated the decree `that all Christians must be free from servitude.'(291) Note carefully, this decree is not speaking about intrinsically unjust slavery, but hard servitude, which in certain circumstances is just. Intrinsically unjust slavery was abolished at the first proclamation of the Gospel and fraternal love.

2232. Hard servitude however was treated differently. Christianity maintained bond-servants in the humility of their state, inviting them to be content with being freedmen of Christ.(292) But after great numbers of them had been baptised and sufficiently educated to freedom, the Head of the Church solemnly announced that the time had come for hard servitude itself to be abolished among the children of the same heavenly Father.

2233. Its abolition now became obligatory for Christian masters. The task was undertaken universally, although the odd exception remained, just as cases of servile wickedness remained. But, during the previous eleven centuries, hard servitude had been the general case and liberation the exception.

Although it is now seven centuries since the Head of the Church forbade hard servitude among Christians — and in fact abolished it — it has raised its head again and endures in the colonies. But this is due principally to the unbelief of masters and governments, which has made people return to the pagan world, their ears closed to the voice of the Church, their hearts blocked to the voice of humanity.

2234. Servitude in the colonies is not only hard, but often an immanent, wicked, inexcusable slavery. Christian governments are bound to punish its practice severely. Governments and masters are also obliged to abolish the hard servitude which the Church has rejected for ever.

2235. It is true that if Blacks were ready for full freedom, they would help themselves, but the unbelief of masters, enchaining both their bodies and their souls, prevents their attaining it. Simultaneously, and through a similar lack of faith, the half-learned who exert influence in governments preach freedom but do not know how to bring bond-servants to appreciate and use the gift willingly offered them.

A well-known writer, speaking of today's serfs in Russia, says:

2236. Certainly, a too rapid transition of a multitude from powerlessness to power, from total servitude to total freedom, is extremely dangerous. People who pass rapidly from a lowly state to great fortune suffer a kind of vertigo; much more so when a whole race, after long servitude, passes to the level of freedom.

2237. The slaves granted manumission by the Romans did not suddenly pass to the state of full freedom but remained at the level of freedmen, a state midway between slavery and full freedom. In this state they maintained a relationship of gratitude, subservience and even some legal bond with their master; for example, if a freedman died intestate and without children, a third of the inheritance went to his master. Rules existed concerning the age and number of those who could be freed, and formalities were necessary for this. Justinian, a Christian ruler, finding the world improved by the Gospel, was able to remove many encumbrances from the free manumission of slaves, and also from the middle state of freedmen.(293)

2238. When I say `the world improved', I mean the lower, greater part of the world. Although the corruption of morals under the emperors, which caused the gangrene in the empire, reached its zenith in the upper classes of Roman society, we can safely assert that the morality of the lower classes, where religion found the least obstacles to its influence, notably improved. Consequently, the increased ability of bond-servants gave them greater value, and made them worthy of many favourable ordinances. It was they who, almost exclusively, exercised the liberal arts and the sciences. They were granted a kind of ownership, at least relative to their families. In fact we have a great number of inscriptions drawn up by slaves in favour of their wives, children, companions and masters. Hadrian and the Antonines made new laws to protect the lives and safety of bond-servants against the cruelty of their masters.

2239. But the very corruption of the Roman masters, the majority of whom were strangers to Christianity, contributed indirectly to the rapid improvement of the slave population. This corruption also rendered them incapable of governing by themselves, and after falling victim to the fury of enraged factions which decimated them, they decided to alienate their own sovereignty and place it in a single citizen.

The only way that Roman ruling authority, when constituted, could preserve itself against the Roman citizens' habit of commanding, was by a tacit alliance between itself and the servile part of the nation against the body of citizens. The emperor, having everything to fear from the great families, thought he had nothing to fear from the slaves. He thus considered it in his interest to exalt the people at the bottom of society and make them his creatures, while casting down those at the top and removing from them the force to harm him. The result was a real revolution and the overthrow of society.

2240. Gallienus (253-268 AD) forbade the senators military service.(294) Serfs, with the assent of their masters, were admitted to military service, and veterans could no longer be recalled by their master.(295)

The extermination of the most outstanding senatorial families causes horror as we follow its traces: from the proscriptions of Silla to the abhorrently wicked Maximian, butcheries of the Roman nobility were repeated, with the result that Goths and Lombards found little noble blood to spill [App., no. 8].

Everything lowly in the Roman republic was elevated, and everything superior, humiliated. The free inhabitants of Rome were first made to descend to the level of the most barbaric provincials. Later, after Rome was abandoned, the emperors gave preference to the cities and provinces where they themselves dwelt. Septimius Severus filled the senate with eloquent slaves; between the battle of Actium and the reign of Vespasian it was filled with new families.(296)

The lowest people, the slaves, particularly the eunuchs, became the favourites of rulers and their ministers. Servile clans soon began to contribute emperors to the Roman throne.(297)

2241. The evils resulting in the empire were extreme, but just, natural and conformed to the justice of the supreme Being.

When slaves attained the highest power after their liberation, they had the characteristics proper to the exercise of tyranny. Arrogant with power, they exercised it in the only way they knew — by making people unhappy: in their eyes, the misery they produced in their fellows was the measure of their greatness. Indeed, freedom on its own, for which they were not ready, made them aspire to dominion. We have an ancient example: the Volsci lost their freedom through the rebellion of their emancipated bond-servants.(298)

Inept at exercising great power, the slaves who had been so suddenly freed, very soon attained the art of accumulating wealth. Avarice became their characteristic vice, as so many favoured freedmen demonstrate. Activity is more easily used for evil than good: if those who have been freed so rapidly have no opportunity to practise cruelty or avarice, the danger of rapid emancipation is the accumulation of layabouts and beggars. Thus at the time of Constantine we see previously unknown hordes of beggars, to whom that great ruler responded by providing institutions of Christian beneficence.

2242. We can conclude that:

1. first of all, gentleness must be preached to masters, obedience to bond-servants; both must be enlightened so that the latter become capable of using their freedom, the former of using their seigniory uprightly;
2. as bond-servants make progress, the burden of legitimate servitude must be reduced until finally abolished.

2243. Politics is infamous and criminal:

1. when it makes or keeps human beings ignorant and corrupt so that it can hold them in subjection or servitude; and
2. when it keeps in the most burdensome and intolerable servitude those who have become enlightened and capable of honest activity.

2244. We have seen the kind of wound slavery inflicted on domestic society (RF, 1402-1417). Decadence among the free population turned the wound gangrenous; the attempt to remedy it was usually too late.

2245. The decline of Roman families, the reduced population of freemen and abandonment of agriculture(299) were new reasons inducing the lords of the world to draw greater profit from the slave population and make freemen bond-servants. They tied to the earth a part of the slave population, prisoners of war, the poor,(300) insolvent debtors and those who offered themselves for such work. Hence, servi glebae [servants of the glebe] or serfs.(301)

2246. When a class becomes more useful or necessary to the masters who make the laws, it immediately improves its state and at least has sufficient protection for its preservation. Serfs, although assigned to perpetual, fixed service, enjoyed the state of free human beings. Thus, properly speaking, their state no longer pertained to slavery, but to legitimate servitude, as I have called it.

2247. The fact that laws bound them to the soil conformed with the concept Roman legislators had of artisans who, although free, were considered perpetually assigned to public service (servi ministeriales) and had to live and die working at the craft they had chosen.(302) Among the Romans, colleges of crafts were an extension of eastern castes.

2248. Servitude of serfs was the same as servitude of artisans. They were called freemen; they were not slaves, but real bond-servants because their work was bound by laws, or rather by the power of the City. This explains the Romans' aversion to the profession of crafts as base and servile. And every educated human being knows how harmful this was to Rome.(303)

2249. Laws sometimes aggravated, sometimes lightened the state of serfs. Finally, Christianity removed the fetters from their activity, gave them back all the rights of domestic society(304) and made them apt to become citizens.
Legitimate servitude can be just if founded on a just title. But in the case of artisans we see no just title among the Romans, unless consent were given for the sake of the privileges and protection granted to their guilds.

2250. In the case of serfs, the following can constitute just titles for ascription to serfdom, provided service is limited to the life of individuals and not extended to clans: 1. spontaneous inscription among their number (adscriptitii), 2. legitimate, just conquest, 3. commuted capital punishment, 4. indolent poverty, proven to be habitually depraved, 5. occupancy of uneducated persons incapable of using their activity, without jural resentment on their part.

2251. In the case of clans, a master can never violate the serf's right to marriage and domestic society in all its extension. Furthermore, in keeping with the development of the offspring's moral and intellectual faculties, he must relax restraint and leave them free if they wish; if not, he violates rational Right.

2252. Legitimate servitude is hard when total and life-long or accompanied by the harsh discipline necessary for obtaining the work due, for directing boorish behaviour and for restraining the perversity of a bond-servant. It is gentle when temporary and free of harsh discipline.

2253. Sometimes servitude, which considered in itself is hard, is not hard for those subject to it. Barbarians, as individuals, scarcely feel the burden of domestic servitude, but as a body, show an incredible enthusiasm for their rough, indisciplined freedom and independence. Because they are inept at understanding and respecting a general organisation, they are inept at civil government and suited only to domestic organisation, to understanding and obeying the individual directions of a master. The indomitable Germans, who submitted solely to a commander-in-chief chosen by them, and only for as long as they liked, set so little store by their individual, private freedom that, as Tacitus says, they gambled with it.(305) In short, what they found burdensome was not the corporal effort nor the harshness of mechanical service, but the acceptance of an organised, regulated life whose value they did not appreciate; for them, this was the heaviest burden.

When Valens allowed the Goths to cross the Danube and gave them provinces in which to settle he was unable to subject them to imperial law, but only to tribute and a partial servitude (`military servitude', as I call it). Hence the first idea of feudal government.

2254. Medieval feudalism, or feudalism of any other time, from the greatest feudal lords to the least vassals, did in fact bring in its wake hard, servile burdens, such as military service.
Barbarian peoples readily submitted to similar hard conditions, but not to complex civil law, although submission to law is less burdensome than gentle servitude; it is not even servitude (cf. 1723-1727). On the death of Athalaric, the Visigoths spontaneously enrolled themselves under the imperial standards, drawn by the friendship that the emperor Theodosius had shown their kings. In the same way, many half-savage peoples like the Buriats, Tartars, Bulgars, Turcomans, Aralians, Kara-Kalpaks, Kirghizes, Bashkirs, Nogais, the inhabitants of the Causcasus, the Circassians, Kalmucks, etc., are at present subject to Russia. Properly speaking they are not subject to a civil government but to military conditions, which are characteristics of what I call `hard servitude'. Some of them have submitted spontaneously: many families of the Kirghises, imitating their brethren, requested subjection to the emperor Alexander who visited their territory in 1823.

2255. But the most complete example of military serfdom is that conceived by Count Arakcheyev for Russia and executed by Alexander himself for 80,000 troops of the line.
If we briefly consider the two or three hundred villages established in this way, we see that they began by constituting themselves in a state of hard servitude in the full sense of the term. This was far from moving towards their freedom in accord with nearly all the other European countries' natural progress from vassallage to civil subjection. Under a rigorous, totally military regime, their heavy duties have been divided throughout the day. They hardly own their own children, who are subjected to the common discipline from the age of eight. Nevertheless this harsh, burdensome servitude becomes easier through habit, and offers a particular advantage in contrast with every other kind of servitude. The military discipline and methodical duties to which they are subject are not directed simply to the benefit of the master, as in other kinds of servitude, but are a real, strict education, even though servile.

Through this education they acquire 1. an increase of physical strength, which is a natural consequence of an austere, hard-working life, where the disorders of dissoluteness are unknown; and 2. an increase of moral strength, because regularity of life together with moderate education inculcates ideas of order which they come to love as a result of long and constant habit. These two outstanding benefits can eventually compensate greatly for the harshness of servitude which was perhaps necessary for such an uneducated people.

2256. Indeed, is it unreasonable to fear that a people educated in this way and growing to a possible six million may develop such tremendous physical strength, sustained by sufficient moral force, that their strength will far outstrip that of the rest of the population of the empire and become the real arbiter of the latter's destiny?

2257. Such a danger could be avoided by natural emancipation according to the requirement of rational Right. The degree of freedom thus granted would balance the feeling and need for freedom, a balance, which if greatly disturbed, would endanger public peace.

2258. Gentle servitude, as I have called it, is neither perpetual nor subject to hard discipline, although it has degrees: it can extend to all the saleable actions of a bond-servant, or simply to a few determined by agreements or the nature of the service.
The servitude of mercenaries who agree to a determined kind of service for a daily, monthly or annual wage, or for any other period of time, is gentle servitude, not unknown to Christian nations.

2259. Administration, or social office, must not be confused with servitude. I have explained its distinguishing characteristics.(306)

2260. Subjection is a mixed concept, originating in medieval times when seigniory intermingled with government. Civil dependence was mixed with a servile element, and in this sense meant dependence on civil government, a dependence associated with a greater or lesser degree of servitude.

2261. Dependence on civil government, today normally called subjection, is in itself totally different from servitude because the word `subjection' seems to have changed from its original meaning.

2262. Not even the highly commendable Haller is free from the very serious error of confusing civil subjection with servitude. He wrongly believes that the distinctive mark of a monarch is that of being the only free person in the State, which supposes that all the other members of civil society are subject to a kind of servitude.

2263. `Free human being', `owner' and `civil governor' express three totally different ideas, and must never be confused.
Free human beings are neither owners of external goods nor governors; their actions are not subject to anyone's dominion but directed solely by their own will.

2264. Owners are neither free nor governors. For example, people who are employed in the gentle servitude practised today, possess something but serve masters, and do not govern.
Governors are neither owners nor entirely free. Properly speaking, intelligence alone is required for governing a body of human beings, and even a whole nation. Even if a wise person owned nothing, he could govern, nor would it be absurd if he were bound by some tie of servitude, not necessarily to the nation he governs but to a third party, a parent, for example.

2265. Subjection therefore, understood as simple civil dependence, does not necessarily involve the concept of servitude. Servitude means some other person's right over individual actions, whereas subjection is another person's right over the modality of individual actions and even over the modality of all other rights.

2266. Although the ancients very frequently confused civil dependence with servitude, they sometimes showed signs of sensing the difference. For a long time the Roman people could not accept the emperor's assuming the title of lord (dominus) because this word presupposed servitude rather than civil dependence. Plato gave the supreme magistrate of his republic the title of protector. This shows clearly that he had no part whatsoever in others' rights or goods but was charged with protecting them; in other words, his office concerned only the modality of rights and goods. We also see the distinction between the states of servitude and civil dependence in the embarrassment of the Roman jurisconsults who, by confusing them, made the emperor a despot over the life and goods of his subjects. Having made him master of everything with the usual adulation of jurists, they had to explain how and why he could not make use of such great authority. They said that all the subjects of the empire enjoyed their possessions and their very lives through the clemency of the emperor. But this legal opinion was incomprehensible to anyone who could still use a little reason; it revealed the falsity of a principle that entailed such evil consequences. On the other hand, the jurisconsults made pronouncements opposed to the principle, when, for example, they said that civil laws could not alter blood relationships and rights.(307)

Notes

(277) By its nature, civil society, like any other society, can refuse membership to anyone it likes, but it may not do so in order to exercise an illegal seigniory over whomsoever it likes. On the other hand, individuals who are able to contribute can claim to be accepted as members of civil society whenever their right of guarantee and jural claim requires this. Similarly, civil society itself can claim that individuals become members when it can invoke its right of guarantee and jural claim.

(278) I have already shown that the right of seigniory and the duty of servitude exist. False philosophers vainly try to destroy them under the pretext that a bond-servant is an inferior being. They have little idea of what human dignity is. The true greatness of human beings is moral, and lies in the exercise of the virtues proper to their state. The fidelity of an incorruptible bond-servant, to whom the master can entrust the most delicate business in complete safety, or of a bond-servant who endangers his own life to save his master's, is the greatest and most moving virtue. Such a man is a treasure. In the state of bond-servant he retains and increases all human dignity. Sophists, by reducing all states to a single state, successively destroy the different kinds of moral virtues.

(279) For the title of gods usurped by ancient rulers, cf. Pietro Gregorio, De Republica, bk. 6, c. 12.

(280) When Rousseau realised that this principle implied the greatest despotism, his remedy was to change the nature of the family by restricting patria potestas: `Children are bound to their father only as long as necessary for their preservation. Once this need has ceased, the natural tie is dissolved. The children, freed from the obedience they owe to their father on the one hand, and the father, freed from the care owed to his children on the other, equally gain independence. If they continue to remain united, they no longer do so naturally but willingly, and the family itself is maintained by pact' (Contr. Soc., bk. 1, c. 2). Rousseau is right, if we grant that what human beings do willingly is opposed to what they do naturally. The bonds he is speaking about can only be physical; if they were moral, they would be voluntary, which, according to Rousseau, excludes them from being natural. But I understand right as a moral bond, not merely a physical bond; it therefore subsists between father and son all their life. Rousseau's concept of pact is also false. According to him, everything done willingly is a pact. `The social order does not come from nature. It is therefore founded on pacts' (c. 1). This conclusion is hasty. There are moral bonds which are willed precisely because moral. However they arise not from pacts but from an act of the will which recognises its obligation, despite the lack of previous pacts.

(281) This is demonstrated by the observation, which Rousseau himself recognises in his system, that not only a majority but all citizens without a single exception must form part of the social contract. He says, `The law of the majority vote in itself establishes a contract and supposes unanimity on at least one occasion' (Contr. Soc., bk. 1, c. 5).

(282) It is therefore also proper to those to whom God said, `He who hears you, hears me' (Lk 10: 16).

(283) Lamennais, Mélanges relig. et philos., vol. 1, Influence des doctrines philosophiques sur la société.

(284) Essai des Lois, 15, 6.

(285) Jn 8: [32].

(286) Dictionn. philosoph., Art. Esclaves.

(287) It is helpful to note, against the sceptics, that people make the same principal, fundamental judgments; any discrepancy is only apparent, or concerns remote applications. For instance, we can maintain that everyone always believed, and still believes, that personal dignity cannot be considered a simple means. Nevertheless the expression, `to buy and sell human beings' would seem to indicate the opposite. But this is not so; we need to get to the basic meaning of the thought expressed so badly by this phrase. The `human being', who is bought and sold, refers to his material part, not to personship, We have difficulty in fixing our attention on the latter, and it was more difficult to do so in ancient times. This observation will reduce the distaste produced by the formula with which the Gauls normally sold themselves, something which they did frequently and easily: `You are permitted to impose on me whatever discipline you choose; you can sell me or do whatever you like with me' (Marculf. Formul., bk. 2, 28). It is impossible to understand this last phrase to its fullest extent; we have to modify it mentally by adding a little clause: `provided the laws of uprightness and morality are respected.' The clause was not expressed because human attention had not yet been directed to it, and therefore the imperative formula to express it exactly had not been found. Cf. Storia comparativa de' sistemi morali concerning this silence of antiquity, ch. 5, a. 7.

(288) De Maistre, Du Pape, bk. 3.

(289) Lev 25: [39-41].

(290) Deut 15: [13-14].

(291) Voltaire, in Saggio sui costumi (ch. 83), says: `Finally, in 1167, Pope Alexander III declared in the name of the Council that all Christians must be free from servitude. This law alone must make his memory dear to all peoples, just as his efforts to maintain the freedom of Italy must make his name precious to Italians. Much later, by virtue of this law, king Louis Hutin declared that all remaining bond-servants in France had to be freed.' In this quotation the historian confuses hard servitude with vassallage. According to the testimony of Bartolo (who was alive in 1300), bond-servants as such no longer existed at his time; by virtue of Christian laws, he says, human beings were no longer sold. On the other hand, at the beginning of the 13th century, there were still bond-servants in Italy, as we learn from papal decrees. Hence, concludes Bodin, we can accept the total cessation of bond-servants in Italy by the middle of the 13th century; he then adds: `History tells us that Louis Hutin, who became king in 1313 (the time when Bartolo lived), paid for the freedom of all slaves who wanted freedom, in order to defray the cost of war. But we must understand this relative to those who are enfeoffed and subject to emphyteusis, whom we, even in these days, see freed by royal letters,' (bk, 1, c. 5).

(292) `Were you a slave when called? Never mind. But if you can gain your freedom, avail yourself of the opportunity. For he who was called in the Lord as a slave is A FREEDMAN OF THE LORD' (1 Cor 7: [21-22]). Christ made bond-servants his freedmen by changing the nature of servitude; he abolished all that was injust and inhuman in it, and gave bond-servants who believed in him a most noble moral freedom.

(293) `But the influence of government and religion continued to diminish the harshness of this dependent state, and the pride of a master ceased to be inflated by his absolute dominion over the life and happiness of his slave' (Gibbon, Storia della decad. dell' Imp. Rom., c. 44). Prior to this passage, the author had spoken censoriously of Justinian's ordinances in favour of slaves, having failed to reflect on the preparation which Christian bond-servants would have partly received.

(294) `The affluent, soft Romans,' says Gibbon (ch. 10), `fell back on their natural character and accepted this dishonourable exemption from military service as a favour. As long as they were able to enjoy their theatres, baths and villas, they put the most dangerous responsibilities of the empire into the rough hands of peasants and soldiers.'

(295) Cod. G., t. 62, c. 11, l. 4.

(296) Annal, bk. 3, c. 55.

(297) Macrinus' servile clan was the object of his enemies' reproaches. Diocletian's parents had been slaves in the house of the Roman senator, Anulinus.

(298) Florus tells us: `The Volsci, the last of the Italians and richest of the Etruscans, gained confidence and begged help against their former slaves who, having taken advantage of the freedom given them by their lords, had usurped power over the republic and ruled' (bk. 1, c. 21).

(299) The law which tied agricultural workers to the land was not, properly speaking, drawn up to protect agriculture but to ensure for the treasury the exaction of property tax, thus depriving the owner of the excuse that it was difficult to obtain labour.

(300) A law of Gratian, Valentinian and Theodosius (382 AD) subjected beggars to serfdom in favour of those who denounced them.

(301) Opinions vary about the origin of serfdom. Géraud attributes it to Greek origin; Carlo Troya to Germanic origin. Cibrario, who mentions these opinions, says that `serfdom began at the time of Diocletian, who transported entire populations from Asia to France to cultivate the land. This example was imitated in the west by Maximian who set the conquered Franks to cultivate the wild country of the Neni and Treviri' (Dell' E. P. del medio evo, bk. 1, c. 2, ed. 1842). It seems however that this kind of service among the Romans must be dated from the first laws forbidding landowners to separate from the land those who worked it, because the proper characteristic of serfdom was the adherence of the labourers to the land. I do not know if these laws go back to the year 359, which is the year of a Law of Constantius mentioned in the Justinian Code (De agricolis et censitis, leg. 2).

(302) A law of Arcadius and Honorius (498 AD) ordains that armourers be marked on their arm to prevent their escaping. Here society is becoming tyrannical. Artisans were necessary to society, which naturally became dependent on them; when they did not work, they could constrain society to enter into pacts. Stronger societies declared artisans its servi ministeriali, obliged them to work and, in order to control them better, forbade them to change occupation. These laws of a political nature violate natural freedom and are reprehensible, unless initially justified by some jural title.

(303) `Roman citizens, although extremely poor, disdained the exercise of a craft. Clothed in rags, they lived off two coppers a day, spent the day in the forum and slept under a portico near the Trigeminan gate, or on straw under a tree in the woods of Aricia; they scraped a living doing nothing. Consequently, not only locksmiths, dyers, carpenters and masons were slaves and foreigners, but architects, readers, librarians, scribes and teachers. The law aided this base opinion and treated the craftsmen as slaves' (Cibrario, ibid., c. 2). It was in fact the laws of despotic civil society that debased opinion: by binding the craftsman to his craft, they really made him a bond-servant, which prevented Roman citizens from ever taking up the practice of a craft.

(304) Justinian ordered that if one of the parents were a serf and the other, free, the son was to take his mother's condition. He applied the principle that partus sequitur ventrem [offspring follow the womb]. This enactment was doubly unjust: it was made for illegitimate children, which was not the case when one spouse was a serf and the other free; and the application even to illegitimate children is opposed to rational law (RI, 1541-1546). If both spouses were serfs but of two masters, a third of the children were assigned to the mother's ownership, according to a law of the Theodosian Code, De inquilinis. Justinian made a different division: a decree exists assigning all offspring to the master of the mother, contrary to rational Right of domestic society. This right must be respected by civil legislators, which was not the case before Christianity.

(305) De morib. germ.

(306) SP, 111-131.

(307) The rule of Roman Right, `Blood rights cannot be removed by any civil law' (Dig., bk. 50, t. 17, l. 8) is truly a fine rule, but the dictate of nature and reason was soon contradicted and suppressed by corruption, which can always accompany legal forms. Thus, slavery and distance made a mother no longer a mother! Cf. Dig., bk. 38, t. 17, l. 2, §2.

Chapter 07

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