Rights in Civil Society - Section Two
Part Three
Appendix To The Philosophy Of Right —
The Better Construction Of Civil Society
Chapter 16
The leading principle of social progress is justice, maintained coherently
2651. There is no doubt that social irregularities often arise from the titles of right acquired over things. These titles are accidental facts and do not seem to distribute goods with due regularity. Moreover, since the state of society results from the existence of these titles to right, it can be said to result from equivalent irregularities. Careful consideration shows, however, that the same irregularities, accumulated according to a provident law of nature, are mutually destructive and gradually lead society to regular formation. Each individual case, considered separately from the others, is fortuitous and could be irregular. When many cases are taken together, there is an obvious, wonderful tendency to bring about a total entity which approaches regularity.
2652. I say `a wonderful tendency to bring about a total entity which approaches regularity' because the complete, perfect regularity we have described is perhaps never realised. The statesman, who has to begin from existing irregularities in the society he is commissioned to govern, certainly cannot carry out his abstractly conceived plans without taking account of these irregularities; he must build upon what he has, not on what he would like to have. Practical political wisdom does not consist so much in establishing a regular society ex novo (there may be no chance of this), but of providing an existing, irregular society with an impetus that enables it to go on regularising itself. This must be done without injury to justice which stimulates society's natural tendency to regularity.
2653. However, to understand better the relationship of which we have spoken between the just and the regular construction of society, let us go back to the imaginary case of a group of people still without government whose entire ownership is well-founded in justice, but amongst whom no one has yet acquired a title to government. Granted this case, political orders can be given to the multitude without any prior intention of following the rules of politics aimed at utility and reduced to the five balances we have mentioned. The intention will be to follow the rules of justice alone. If this were the case, I maintain that we would arrive at a result similar to that obtained by following political rules. In other words, we would be borne towards the five balances. Let us examine this briefly by reference to the balance between ownership and civil power.
2654. The right to govern is a good, as wealth, etc., is a good (USR, 159, 311). It must not be given to people at random, but according to the rules of distributive justice and equity.
2655. Government must bestow some good on the individual, the group and the people as a whole. Its first responsibility, therefore, is to keep evil at bay by defending the rights of all.
2656. Our first consideration will be to ensure that
1. government does not exceed the limits of its power, and does not use any
other means in obtaining its desired good than those which regulate the
modality of people's rights. It has no power over rights themselves;
2. government not only does not abrogate for itself more authority than it
actually possesses, but, as far as possible, is inclined by its constitution to
make good use of its authority in such a way that harmful governmental
constitution does not provoke those who govern to injustice by tempting their
passions.
2657. Every governmental ordinance contains two distinct acts: 1. a judgment by which government decides that the ordinance is within its competence and does not harm the rights of any member of society (first heading); 2. the execution of the ordinance itself. With the first act, government acts as judge, and comes to a decision about justice between itself and the members of its society; with the second, it acts as administrator, whose duty it is to reject useless ordinances and put useful ordinances into practice.
2658. Until now these two parts of civil government have always been confused. Although the distinction between them, which is extremely important and very evident, is as clear as that between justice and utility, Montesquieu traced his own celebrated division of three powers. I think, however, that the division between these two parts of government is even more important and necessary. The division is suggested by the very nature of things because deliberations about judging what is just and judging what is useful are highly diverse and have different consequences. Different means are required to ensure correct judgment in the two cases. It is absurd to dispense the executive part of government from rendering an account of its activity to the judicial part. The former cannot remain independent of the latter. The two acts of government have to be separated. They have to be actuated in different ways, and finally constitute two supreme powers around which all others revolve. They will be independent but harmonious powers, and as such help one another reciprocally within the limits of their aim (USR, 309-310, 357-364).(463)
2659. We have to establish two offices or ministries in the population which, in our supposition, has to organise its own government. One office will take the form of a tribunal destined to judge political questions between the administration of the society and the members; the other will take an administrative form directed, relative to justice, by the social tribunal.
2660. Having recognised and fixed the two principal and essentially distinct parts of civil government, we now have to examine the form or constitution best fitted to them. This will be done, as always, according to the rules of justice and equity that we have proposed.
First, it is immediately obvious that we cannot follow the same principles in establishing a just tribunal and a prudent administration. The procedure will be totally different because judges and administrators require very different and sometimes opposite gifts. Judges have to remain outside the interests they judge; administrators must have some interest in the business they deal with. An owner always makes the best administrator of what is his own.
2661. This opposition and almost incompatibility between the two offices shows that when a way has been found of separating the two offices as far as possible, an immense step will have been taken towards the best, most just constitution of civil society. They must be made independent of one another, and allocated to two distinct jural persons; civil society will remain very distant from its ideal as long as these two offices are joined in the same person, whether individual or collective. The less interest a person has in business, the better his judgement and the worse his administration. The more interest he has in business, the more his jural acts will give grounds for fear, and his administration, grounds for confidence.
2662. Until now civil government has been seen only from the point of view of administration; there has been no consideration of any political tribunal present in government prior to administration. Although the judgment proper to this tribunal precedes all administrative acts of government, no theorist has yet thought of conceiving a tribunal in which serious consideration would be given to the one element towering above all others, that is, the element dealing with public justice. The natural consequence of the lack of a political tribunal, or its confusion with other governmental powers, has made and makes civil society an immense weight upon its members who have no satisfactory way and manner of appeal against it. Human nature, despite consistently resenting this, rebelling against it and tearing itself apart, has always been unable to recognise clearly what it lacked and was searching for. It tried palliatives, and even poisonous remedies, whose disastrous effects led it to bear peacefully troubles which it considered necessary and irremediable. Civil society sagged, as it were, into a kind of timid, inert resignation.
It is, of course, obvious that the true needs of mankind first show themselves in the crude protests of rebellious, unrestrained people, long before the wise make themselves heard; it is obvious that the mercilessness of the most viciously corrupt, always on the alert for the chance of spreading ruin and devastation, is first to take hold of the feeling aroused by social needs which it then brazenly abuses by using this obscure, powerful feeling as a support and cover for its own hidden designs. Nevertheless, the need for a court of political justice, despite its bad interpretation and expression by unhappy people, is naturally felt in human hearts. And the voice of nature, as always, is faithful, merciful and friendly.
2663. But surely this political tribunal would be judging government? This objection can only spring from the imperfect idea of civil government that has been prevalent until now. Government, it has been wrongly supposed, is solely administration, not a tribunal of public justice. As far as I can see, it is both. The idea of complete government is present only when the two parts of which we are speaking have been united by a co-ordinating principle.
2664. But surely, the objection continues, it is impossible to establish such a tribunal to judge cases between administration and the members of society. Is it impossible? Would the tribunal find it difficult to decide justly in all cases? This objection, if valid, would prove too much because it would also be applicable in the case of civil tribunals where again the well-being of citizens is entrusted to the integrity of judges. This was almost entirely the case when laws were still unwritten and not yet clearly ordered in a single body. Despite occasional injustices, civil tribunals retain their worth and necessity. As we said, the difficulties simply prove that the final, solid guarantee of all human institutions is solely uprightness and virtue. If we cannot suppose some virtue in society as a firm basis on which to place its institutions, society itself would be impossible.
2665. This comment allows us to understand better the difference between a court of justice and an administration. A judge's first quality must necessarily be integrity; an administrator's, considered solely as administrator, foresight, An excellent judge, always accustomed to follow a direct line, and decide straightforwardly and unambiguously what conforms to the laws of justice, may well be a hopeless administrator; an excellent administrator, with considerable talent in calculating the balance of utility and finding prudent ways of action, will scarcely ever be an honest, loyal judge. The spiritual endowments and intellectual talents of these two personages are normally very different. Justice possesses something universal, independent of all human things, and can therefore be known to people of every condition provided they have the same talent and sentiments. The administrator's talent lies in something quite different. His instinct enables him to see the long-term consequences of things, and calculate the effect of many interacting events. His talent, therefore, is entirely dependent on the practice of human things, on relative experience. It is not common to all and sundry, but proper to those who are accustomed to command, govern and administer, which is normal in higher ranks of society. The judge pronounces his decisions according to fixed, unchangeable, absolute rules; the administrator makes his ordinances on the basis of changeable rules, relative to circumstances. The norms of justice, precisely because they deal with a universal object, are common to all, and almost inborn; the norms of utility are infinitely variable, according to the ambit of affairs to which they refer and, because acquired only through experience, differ according to human conditions.
As a result, concurrence for the political tribunal must be left open to every single member of the society, and even to foreigners, whatever their condition. The only criterion for the most suitable persons for this responsibility is, relative to the spirit, their virtue, integrity and solid incorruptibility; relative to their mind, jural knowledge. Every endeavour directed at instituting a political tribunal, will therefore aim at: 1. deciding the best way of discovering which people best possess the two requirements of integrity and moral science, and ensuring that these candidates are chosen for the court; 2. deciding the best way of rendering the tribunal inviolable. This will be done by giving support to its judges in their human weakness, protecting them as far as possible from temptations to injustice and ensuring their commitment to their work with various but principally religious means which impose on them the duty of never consciously violating justice without their crime appearing very serious indeed to their own conscience and that of the public.
2666. Administration on the other hand will not be open equally to all
members of society. It will take into account the different economic
circumstances of the citizens; participation in administration will depend on
the extension of their ownership. Those who belong to more wealthy families
have by their habitual attitude more to offer public administration.
We have thus been led, by reasoning from principles of justice alone, to
establish the political criterion which we first found on the basis of
political principles. In other words, we have arrived at establishing
proportional balances, especially that between ownership and civil power.
2667. I realise that prejudices still present in spirits since the revolution will at this point raise an enormous clamour, and cry out for my crucifixion. Why should the rich be preferred to the poor in public administration? What frightens the objectors is the oppression of the poor by the rich, of the weak by the strong. — This, however, is an irrational fear. It is not difficult to show, and here theory and practice go hand in hand, that injustice will more probably be committed by a poor rather than a wealthy administration. The former is much more to be feared than the latter. Moreover, the difficulty put forward vanishes completely when the faculty for judging what is just and unjust has been removed from governmental administration. We have entrusted this judgment to people taken from all classes without distinction. Their sole distinction consists in their greater degree of proven uprightness and integrity, and their greater degree of jural ability or knowledge.
When governmental administration has been deprived of supreme political judgment, that is, the power of judging in its own cause, all that remains is a body of citizens who together regulate the modality of their own rights, and in which each citizen influences the modality in proportion to the rights he possesses, the same rights that regulation is intended to assure and assist. This administration is truly a society in which each member enters with some capital. It is therefore reasonable and conforms to justice that each member should influence proceedings with a vote commensurate with his contribution (USR, 213-366). There is nothing unjust in the government of such a society. It is reasonable that owners should be administrators of what is their own. It is just that those who possess the greater part of a common social capital should prevail when different co-owners administer it and cannot reach agreement. Depriving them of this right would certainly be an injustice. Do we really want to begin to constitute a society based on injustice under the pretext of fearing injustice?(464)
2668. It is clear, therefore, that social administration can be divided in this way only, if we wish to follow the principles of distributive justice in setting it up. It is also clear that such a division, by assuring the rights of all, renders injustice less probable, and hence less to be feared. Injustice is always a matter for fear to the extent that administration is entrusted to mercenary persons, or even to persons other than the owner. If, in fact, an owner were to make some mistake in administration, he would be the only one to suffer. This in turn would not cause social upheaval because a person easily forgives himself. If it were possible to exclude all non-owning administrators from human affairs, every administration would make progress, or would at least exist peacefully, because no owner would complain about his administrator. Applying the same principle to the great administration of civil society, we would have constituted it in the best possible way, and as far as possible have outlawed from it all injustice, by ensuring that owners administer it themselves. This is achieved precisely by dividing administration amongst the members of the society in proportion to the quantity of rights which they bring to it.
2669. Let us suppose the contrary, and imagine that governmental
administration is invested in those who possess the least. We would now have a
form of administration in which the owner is divided from the administrator; we
have opened the door to all the injustices we are trying to avoid.
This would not be the case if the owner were the administrator. This is so true
that injustice would be lessened even on the supposition that the political
tribunal we proposed did not actually exist. The door would certainly be left
opened to injustice, but this would be caused only by lack of a tribunal, not
by a less perfect form of administration. It would always remain true that this
form of administration would reduce the danger of injustice to a level below
that in any other form, although it could not eliminate it absolutely.
2670. This residue of injustice adhering to the best form of administration is what we want to avoid by instituting a political tribunal, or Senate. Such injustice is very far from damaging the administrative form of which we are speaking. Indeed, it constitutes a counter-proof that this form is the best of all. Why is it, we may ask, that there is always some danger of injustice even when this form of administration has been set up? Because, whatever form of civil administration comes about, it is never possible to ensure that the owner alone is at the same time the administrator. It is clear that an owner cannot commit an injustice against himself.
It is not absurd for an owner to administer his own capital when it belongs entirely to him. We thus find the two states of owner and administrator incorporated in the same person. If, however, the capital has many masters, each of which possesses an unequal portion, it is impossible to establish a single administration with such a form that the owner is incorporated in it in exactly the same way as the administrator. All the forms which can be given to this kind of administration are reduced to the following: 1. administration by persons not belonging to the group of masters; 2. administration by persons chosen from the masters, but without their influencing matters in proportion to the share that each master possesses; 3. administration by masters themselves in proportion to their share in the social capital. None of these forms allows the owner to be fully incorporated with the administrator. The second, however, is closer to this than the first, and the third than the second.
Relative to the first, the matter is clear: the owner is totally excluded from administration. A comparison can be made only between the second and third. As we can all see, every time that a master co-administers power which exceeds the proportion of his ownership, he becomes to that extent an administrator of others' goods, not of his own. Thus the administration is misplaced and put in the hands of non-masters. Let us imagine, for example, a society with only two masters, one of whom posits thirty units as his contribution to the social capital, the other, two; the two masters administer with equal authority. The total authority is as great as the social capital which has to be administered, and can here be expressed as thirty-two (because the social capital is thirty-two). Each of the owners enjoys sixteen parts and administers, as it were, sixteen parts. But the ownership of one person extends only to two units; he is thus administering fourteen parts belonging to his companion. The ownership of the other comprises thirty parts, of which he administers only sixteen. As a result of this irregularity, the master ceases to be administrator of fourteen parts of his capital.
2671. It is true, of course, that not even the third manner of administration attains perfect incorporation between owner and administrator. It does, however, draw near to it because a common administration, while requiring each person to cede in part the administration of what is his own, allows each to acquire in compensation some part of the administrative power of the others.
2672. In every common administration, however, there is an opening for some injustice because each person, by influencing the entire capital, produces an effect on something not his own. Where does this injustice fall? It must fall on one of the three aims of civil society: the common good, the public good, and the private or particular good (cf. 1643-1663). It is natural that the common good be desired by all the owners. There can be no violation of the common good, therefore, except by an administrator who is outside the society. Moreover, the outsider who wishes to sin against the common good, will want to sin even more seriously against public and private good. This is the extremely serious defect of the first of the three forms of administration that we have indicated.
The social administration can only sin against the public good when it is instituted in the second of the forms we have indicated, that is, where deliberative votes are not distributed in accord with ownership. If they were distributed in accord with ownership, it would be impossible to make any ordinance voluntarily endangering the public good, that is, endangering a mass of rights greater than half the common social capital. The greater number of votes would always be favourable to the greater number of rights. But in the case where the value of the votes is not in proportion to the rights possessed by the voters, it could well be that the greater number of votes was opposed to the greater number of rights. In the second form of administration, therefore, the greater part of rights, far from being assured by society, would be exposed to the decision of the person who obtained a disproportionate degree of influence in the social balance. Particular good would be even less assured in this form of administration where public good is insufficiently assured.
It remains, therefore, that only particular good is insufficiently protected under the third form of administration, in which administration is distributed according to ownership. Private good, the lesser mass of rights, can always be oppressed by the greater mass. This is the only opportunity, however, that remains for the strong to assail the weak, and the powerful to harm the impotent. There is no human counsel or foresight that can save the weak from the envious desires of the strong; no external foresight or precaution whatsoever will be able to save them unless justice herself, the heavenly ruler of the moral world, gives them shelter and protection under her mantel.
2673. It is necessary, therefore, to establish a venerable, sacred, political Tribunal alongside governmental administration. Here eternal, immutable justice, the most sublime of all powers, calls to herself all mankind whom she judges equally without consideration of persons or social bodies. Here the poor may find refuge against the rich, the weak against the strong, the minority against the majority; here, to the honour of the Christian world, it becomes clear that the law which commands all, before which everything on earth bows low and trembles, has finally an invincible sanction in consciences and an incorruptible interpreter in society.
It is the responsibility of the philosophy of politics to develop more extensively the natural construction of civil society which we have barely outlined. This will enhance the dignity and utility of Right because it will be seen ever more clearly that what has been decided about the best construction of civil society, by reasoning with the principles of justice, will be fully in harmony with that suggested by strictly political principles whose immediate aim is utility.
Notes
(463) These two powers correspond to jural and constitutive equality (cf. 2182-2187). We saw that all human beings are equal in the first, but not in the second way. All are equal when judgment has to be passed on the possession or not of a right; they are unequal when judgment about the possession of a right has already been passed. In this case, the inequality enables the person who has a right to use it, while the person without a right has to abstain from using it and respect the use that the other makes of it. The question about who possesses a right requires a judgment relative to justice because it is about what is mine and what is yours. Granted this judgment, the person considered to have the right is now free to use it as he likes, as he finds more agreeable and useful. This is an act of administration. If we now apply this argument now to the two acts of social government that we have distinguished, we find that the former is a judgment, the second an administrative act which presupposes the judgment. Relative to the first power, government is considered as a person endowed with jural equality, that is, equal to any other collective or individual person, great or small, inside or outside of society (RI, 1647-1660). Relative to the second power, government is considered as a collective person endowed with constitutive inequality. The decision is made that the government's projected ordinance is concerned with an administrative act, with the use that government makes of one of its certain rights.
(464) This is so clear and conforms so well with common sense that it seems impossible for a person of good faith to think in any other way. The opinion of those who claim that social administration should be regulated by votes of equal weight for each of the co-owners is absurd. In this case, a member who possesses thirty times as much of the common social capital as another would not have a greater voice in the administration than the other. If this were so, the member who possesses more would have lost some of his capital on entering the society, and the member who possesses less would have gained. The member who possesses more would have ceded to the other's will a proportion of government over his own possessions which would not be compensated by the portion of government acquired over the other's possessions. Equally, the one who possesses little would have ceded part of a small administration and acquired part of a large administration. In other words, one of the members would have gained, the other lost. As a result, equality between the two members would not be maintained; the new disposition would include a blameworthy inequality, against the principles of distributive justice. Civil society differs from the society of which we are speaking (in which various co-owners administer a common social capital) only in its extension and in the nature of the social capital administered.