Rights in Civil Society - Section Two
Chapter 7
The principle of free concurrence, applied according to the prescriptions of rational Right, saves civil society from all the injustices listed above.
2267. So far we have tried to unravel civil Right and identify many of its threads. We must now bring these together and, if possible, make them one continuous thread. For this purpose we need to recall that I reduced the duties of civil society to two general duties: 1. civil society must not extend its action beyond the regulation of the modality of rights, but 2. must extend it to all the parts involved in the regulation of the modality.
The usual cause preventing civil society from extending its action to all the parts involved in its proximate end (defined as `the most equable, useful regulation of the modality of rights'), is its own poor development and that of its members. This is an imperfection, not an injustice. On the other hand, civil society commits a manifest injustice every time it fails in its first duty by crossing the limit of the modality entrusted to its regulation and entering the rights of individual and collective persons.
2268. All the injustices proper to society and its government therefore (but not those of persons and form, nor those which society as a jural person can have in common with all other jural persons) can be reduced to this formula: `Crossing the line of modality'.
2269. If civil society, and government in its name, do not cross this limit, all citizens, including foreigners, maintain in full their jural freedom.
2270. I call this freedom civil freedom, in so far as it is preserved in society and protected by its laws. Hence, wherever the whole of civil freedom is preserved and protected by government, there is no injustice of any kind on the part of society and its government. The very rights of ownership are reduced to jural freedom which bears in itself all human rights (RI, 65-66, 84, 290; ER, 340).
2271. I think it is possible to find a simple formula that would express the
unique principle or universal means which, applied correctly, renders civil
society immune from every injustice. I would propose the following:
`If civil society maintains inviolate the principle of universal free
concurrence, according to rational Right, it will avoid every injustice.'
2272. The formula can be explained in this way: rational Right allows all individual and collective persons to acquire equally any right whatsoever, provided the modes of acquisition are just. Granted that politico-positive Right does not use arbitrary ordinances to reduce the sphere of a jural person's freedom, the concurrence under discussion is preserved.
2273. I say `arbitrary ordinances' because there is in Right itself a mode of limiting another's freedom which consists in preoccupancy, in our ownership, in the use of our rights of ownership and their functions, for example, the function of defence and guarantee.
I will now discuss particular cases of concurrence.
| Concurrence for citizenship |
2274. Civil society is not obliged to receive an outsider as one of its members unless forced do so by right of guarantee. In this case, granted that the applicant has all the qualities necessary for membership,(308) admission must be allowed. Requirement, by positive ordinance, of arbitrary qualities before admission denies the natural, universal concurrence under discussion.
2275. It is true that an aspirant's right of guarantee to civil association can have no value when a society needs to exclude him for its own defence or guarantee. This would be the case if the outsider's customs were reprehensible and opposed to those of the society. The society would justly fear a change to the morals and the upright, religious beliefs of its citizens, which is the seat of uniformity of social thought, the overall force of society.
2276. If there are no causes justifying exclusion from citizenship, an outsider must be admitted if he requests this, or the right of guarantee authorises him to make the claim.
2277. This however refers only to pure civil society unmixed with seigniorial elements, that is, to the ideal of pure civil society. For this reason, outsiders were not accepted into ancient civil societies, even though the applicants possessed, according to rational Right, all the qualities proper to the state of citizen. In those societies the state of citizen did not mean simply `member of civil society', but `a group of rights that were part social, part seigniorial'. Dissolving this group is the work of social progress.
2278. So far, jurists have not investigated the meaning of the word `citizen' among different peoples. Because the word expresses a group of extremely variable rights, it cannot be given a fixed definition, as if it had always kept the same inalterable meaning. A fixed definition would prevent any equable judgment on the constitutions and civil laws of different peoples.
2279. Civilisation spread by means of colonies(309) founded by the most famous states. From the beginning only the conquerors were citizens of these cities, uniting two qualities: citizens among themselves, masters relative to the conquered people — they were both citizen and lord. Under these conditions, citizenship cannot be further extended without activation of the jural modes which allow others to be admitted independently of seigniory. The Helots in Sparta will serve as an example. They were a conquered people,(310) subject to moderate servitude. An historian notes:
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It must be said that their condition was more that of State bond-servant than of private individual. They could not be put to death or emancipated except by public decree. The government itself, bound by an ancient pact, could not sell them outside the country.(311) |
Spartan citizens were therefore simultaneously lords, and their government a seigniory: a person made a citizen was also made a lord.
Granting citizenship in these societies was necessarily the same as performing an act of free beneficence:
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All the roads to freedom however were not closed for the Helots. First of all, those who had done useful service during war were very often freed. Secondly, the Spartans quite often took as companions for their sons Helots who came to share not only in civil discipline but in freedom, and sometimes even obtained citizenship. Again, in the second Messenian war, we are told that, because the State lacked citizens, Helots, called epeunactoi, were given as husbands to the widows and granted both freedom and citizenship.(312) |
2280. In ancient civil societies, founded for the most part by seigniorial power but also by simple heads of families, the inclusion of a seigniorial element in citizenship was common. Here we have the explanation of tribes in all ancient cities; from the beginning, tribes divided according to their ancestry:
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In Argos and elsewhere there were three tribes of Dorians: the Hylleis, Dymanes and Pamphyli, together with a non-Dorian Irnezian tribe. In Sicyonia, three Dorian and one Aegialian; in Cyzicus, four Ionian, two of another lineage; in Ephesus, five of different lineage.(313) |
2281. Furthermore, in many ancient States only citizens possessed land because it had been given to them at the time of the conquest. Adding new citizens was the same as donating wealth to the persons who were made citizens. Here again, acceptance of a foreigner into citizenship is an act of arbitrary beneficence.
2282. The existence of communal or social goods also confers some real rights on citizens who thus become owners as well. Granting citizenship to foreigners becomes more difficult in these conditions.
2283. In modern times we have often seen old-established citizens or sharers
in communal rights hold themselves aloof from new citizens or sharers in
communal rights. The former reserve fields for themselves, or the right to
collect wood, or to enjoy the fruits of common land. Disagreements arise
between them and new claimants to the same right because of their quality as
citizens or sharers in communal rights.
This case could be resolved equably, I think, in the following way. If the new
citizens have been admitted by law or order of a higher governmental authority
without the agreement of those already citizens, the latter would be right to
hold on to the exclusive enjoyment of communal goods. But, through the laws of
free concurrence, the new citizens should be allowed the faculty to purchase at
an equable price the right of co-ownership of communal goods.
2284. This explains why citizenship was bought for a substantial sum — it was not only citizenship that was purchased, but the real, seigniorial rights attached to it.
2285. We also see how civil legislators violate principles of justice when they think they are free to extend citizenship or a share in communal rights by means of new laws without any regard for the real and seigniorial rights inherent in citizenship, and without obliging new citizens to compensate those who are already citizens or to request their unanimous consent. Arbitrary laws of this kind, which dispose of the goods and rights of the ancient sharers in communal rights, exceed the sphere of civil power, which applies solely to the regulation of modality.(314)
2286. Whenever other rights, such as real and seigniorial rights, are attached to citizenship, the right to vote in public deliberations cannot be universal. The regulation of the modality of rights in assemblies is not the sole topic of discussion; some masters and owners discuss their own interests, and in this regard they are similar to a private family gathering. This is the origin of aristocracies. We will take Greek aristocracies as an example.
2287.
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Citizens of full right discussed public matters in their gatherings, tribunals and courts. Gatherings called gerousiai, and sometimes boulh, were of a fixed number of created or hereditary nobles. At Corinth there were two hundred, all Bacchiadae; among the Eleans, nine hundred perpetual members, drawn from particular families; among the Cnidians, sixty (amnhmoneV), some of whom were perpetual and some chosen from the nobles; among the Epidaurians, a hundred and eighty, who chose from among themselves a few artunouV as a small council; among the Massalians, six hundred (timoucoi), chosen from the nobles, of whom fifteen and three presidents constituted the small council. In some cities there was a kind of middle state between the few members of the senate and the universal assembly. These specially chosen citizens (sugklhtoi) formed their own assembly.(315) |
If the sole matter discussed in these gatherings dealt with the regulation of the modality of rights, it would certainly have been equable for all members who paid the contribution(316) to take part. But this becomes unjust when discussion concerns not only modality but also the means for making some people's rights both prevail and increase against the rights of others who are compulsorily excluded from the gatherings.
2288. What we have said explains the origin of aristocracies and of all the political differences between the various classes of citizens, as well as the origin of different degrees of citizen. These inequalities necessarily arise in all civil societies where the seigniorial and family element is still unseparated from the civil. When civil society has been purified and become an institution existing of itself, as its ideal requires, these forms will naturally come to an end because they become unjust, useless, harmful.
2289. For this kind of progress, the faculty of analysis and abstraction needs to be greatly developed. Clearly, social Right, when confused with seigniorial Right, can only suffer continuously from the confusion; a single solution cannot satisfy the demands of two Rights. Social Right, if not purified of seigniorial Right, is obstructed and as it were paralysed.
| Concurrence for the state of freedom |
2290. In a purely civil society not mingled with seigniory, rational Right requires that the process for becoming a citizen be open to foreigners when 1. these have the qualities required by the simple notion of citizen, 2. they ask for citizenship and in particular can base their request on the right of guarantee. This is free jural concurrence for the state of citizenship. But there is also a bond-servant's free jural concurrence for the state of freedman.(317)
2291. We have seen that
1. No law (excluding penal law) can prevent a bond-servant from possessing and becoming the subject of any right whatsoever not opposed to the prestation of the labour owed to the master (USR, 178-180).
2. The prestation of labour can always be calculated in money or some other way.
3. A bond-servant's master cannot deny emancipation when the bond-servant himself, or others on his behalf, gives him a value equivalent to the bond-servant's labour (USR, 181).(318)
2292. It follows therefore that:
1. The master who denies emancipation in this case commits an injustice and must not be supported by civil law.
2. The bond-servant has the right to use all the means in his power, apart from the prestation of labour due to his master, to obtain his emancipation (USR, 182).
3. The bond-servant in perpetual servitude can reasonably claim that a master whom he finds hard and unjust sell him to another master. This does not affect the master's right; it is simply a change of modality.(319)
4. A civil society would injure a bond-servant's rights if it 1. denied these forms of emancipation, according to rational Right; 2. applied impediments, or 3. claimed that emancipation was not an act of individual Right pertaining to commutative justice but an act of its authority.
5. Civil society must expressly protect a bond-servant's rights, even if he is not a citizen. Otherwise, in the case of a master's injustice, it would have to allow bond-servants to obtain justice of themselves. This could expose the masters' families, and civil society itself, to many problems.
2293. There is according to rational Right, therefore, concurrence of a bond-servant for the state of freedom, independently of the authority of civil society which is obliged by justice not to harm but prudently protect the concurrence.
| The concurrence of citizens for all social goods and offices |
2294. In modern times, hatred of every kind of monopoly clearly indicates the progress of civilisation and the prevalence in modern societies of the civil element over the seigniorial element.
2295. Another indication of progress is the repugnance — increasingly evident in public opinion — for all laws and ordinances which incapacitate a whole class of persons or, under the title of testing suitability, demand arbitrary, excessive and over-cautious qualifications before people can be admitted to certain posts or are suitable for exercising certain offices, particularly in the case of private occupations, such as arts and crafts
2296. Nevertheless it is absolutely certain that a wise government can and must require guarantees from those seeking public offices, and tests which can assure the government and the public of the aspirant's suitability. But we still need to answer the great problem: `What guarantees and tests must be required of aspirants to public posts, so that 1. society is assured of their suitability and, where the choice concerns several suitable competitors, which has the greater suitability, and 2. the least possible restriction is placed on universal concurrence?'
2297. This is one of those difficult problems whose solution is gradually obtained over the centuries. Experience and political reflection can indicate ways to continually reduce those obstacles to concurrence presented through qualifications or other necessary guarantees and tests, without diminishing the probability of choosing a suitable aspirant, and among suitable aspirants the most suitable.
2298. It is sufficient for me to have proposed the problem, which still
needs direct study. I will make a few general comments about it.
First of all, the obstacles to jural concurrence(320) would, it seems to me, be completely annulled, if the
condition of greater suitability could be fulfilled. The suitability would have
to be ascertained by tests directly demonstrating it, excluding all indirect
tests which generally relate more to the means by which the suitability
is supposedly obtained than to the suitability itself.
2299. Direct tests of suitability are:
1. Public opinion which attests the aspirant's suitability. — But we still need a solution for the question: `What are the means for knowing public opinion with the least danger of error, and for not taking private, incomplete information as public opinion?'
2. Previous relevant facts about the aspirant, particularly public facts which exhibit his suitability; published works, to ascertain his knowledge,.
3. Strict examination at a time close to the choice.
4. Practical tests in which temporary responsibilities of minor importance are entrusted to him. Hence, a formal, not material gradation of posts, calculated not only by years of service, but by ability and prudence during service.
2300. There may indeed be advantages in committing the appointment and proposal of employees stably and exclusively to the body of people of which the new employee will be a member, but there are also drawbacks, and one very notable drawback: the body of people that makes appointments and proposals soon changes into a faction, intent on exploiting this power for its greatest private profit. It is a fact (which will certainly be known to political prudence) that when a faculty, right or public power has become fixed in a certain class of persons, they eventually learn how to make it productive for their own private advantage. Time sharpens minds, which discover a thousand clever ways of accomplishing this. Such people gradually form corresponding practices which pass as legitimate and equable; they consent and conspire in an extraordinarily instinctive way for the same end, and through habitual behaviour that passes for a tacit pact. Hence, to avoid forming FACTIONS whose choice of the most suitable people is limited to a very small number of adherents, no time must be left for jiggery-pokery; and proposals for posts must never depend in a fixed and stable way on these factions. What then is to be done?
An autocrat could authorise a reputable, upright person, who would act on only one occasion, to propose those who are to be given important posts. I say one person rather than many because his honour would be involved and he would want to succeed in the task entrusted to him. In certain Italian universities, the magistrate responsible for studies did precisely this: the person commissioned to find a worthy professor for some seat was particularly careful to gather very accurate information about the most outstanding academics of the time, with the result that an eminent subject was always proposed. It is true that in the case of social posts, many qualities and special merits must be considered, but these are to be weighed, as I said, by a tribunal of distributive justice, by a kind of jury which is never fixed but chosen for each occasion, whether or not the composition of the tribunal is regulated by fixed laws or maxims.
Notes
(308) Hence civil society is not obliged to admit the poor; on the contrary, if they do not pay any tax (capitation), they must be excluded from citizenship.
(309) Cf. SP, 371-391.
(310) According to the more probable opinion, the word `Helot' comes from eloV, a city of Laconia conquered by the Dorians. Later it came to refer to condition, not origin.
(311) C. Cantù, Legislazione, n. 2, §3.
(312) Ibid.
(313) Ibid.
(314) This imperfection of the law must be classed among those caused, as we saw, by poor development of the faculty of abstraction (cf. SP, 830-838). As I have said, the imperfection can be avoided simply by analysing the meaning of the word `citizenship'. On the one hand, we have its pure concept, which is that of `member of civil society', and on the other the rights of ownership and seigniory joined de facto and per accidens to the quality of citizen. Pure citizenship pertains to the modality of rights. Consequently it is the government's responsibility to confer it, provided only that new citizens pay the contribution. The real and seigniorial rights joined accidentally to citizenship do not pertain to modality but are nevertheless true rights. Government therefore cannot take a part of these rights from the old owners to give it freely to others without the consent of the owners, or without an evident benefit sufficient to compensate their loss.
(315) C. Cantù, Legislazione, 2, 1.
(316) One of the indications that civil society is disturbed and even absorbed by the seigniorial element is exemption from public taxes in favour of certain classes of citizens. This right can only be seigniorial. This is even more true if the social burdens are carried by non-citizens while citizens remain unburdened. In Greece, `noble descendancy was distinct from plebeian; plebians were not even considered as citizens. A few of them however were free to possess provided they paid a tax; others were bond-servants of the glebe.' The Perioeci, `who in Sparta were excluded from every right of citizenship, had no vote, were not admitted to responsibilities, and were not allowed to marry; they simply paid tax and supplied a stipulated number of soldiers with armour and light arms.' In Athens `slaves apparently had to pay annually three obols each; family heads among rent-payers had to pay twelve drachmas, widows six, and freedmen three obols extra. The annual total of all taxes can be put at more than fifty talents. We are ignorant of taxes on crafts and business, of whatever kind or quantity. but we know that citizens were exempt.' We see here how much the seigniorial element was involved in ancient civil societies.
(317) I am not speaking about illegitimate servitude (slavery), an unjust state which, as I have said, must be immediately and totally abolished in fact, precisely because it does not exist by right.
(318) In Athens `(slaves) not infrequently agreed a price with their master and bought their freedom with their own funds' (Dione, Crisost. Orat., 15, p. 241; Petit, Legg. Att., p. 259). `As Hermann notes (Ant. Gr., §114, 11), we cannot deduce with certainty from Plautus' Casina that, in spite of their masters, slaves could redeem themselves without such a pact' (C. Cantù, Legislazione, n. 3, §16).
(319) The Athenians recognised this right of a cruelly treated bond-servant to require that he be sold.
(320) By jural concurrence I mean concurrence by right, concurrence protected by rational Right. Note carefully, I never speak about a truly unlimited concurrence; the only concurrence I support is that limited by rational Right alone.