Social Right
Special-Social Right
Part 1
Right In Theocratic Society
| Jurisprudence is knowledge of DIVINE and HUMAN things, the
verdict about what is just and unjust |
477. All the kinds of society listed and classified in Universal Social Right, (cf. 50-141) are subject to universal Right, outlined rather than studied in the preceding book; each is also regulated by its own special Right.
478. This Right is partly rational, partly conventional.
479. The rational part is deduced by reasoning from the end and nature of the society under consideration; it is the outcome of jural reason.
480. The conventional part consists in the conventions agreed by individuals who form societies.
481. The conventional part is an element of applied, or realised Right, because it results from real facts, such as conventions, and not from simple possibilities. The rational part, on the other hand, belongs to pure Right. The particular societies which it examines are not considered in their subsistent reality, but as possibilities; pure Right considers the essence of these societies, without investigating whether they can actually be found. Information about their formation by mankind has no bearing on the aim of the study.
482. The parts of rational Right, in so far as it governs particular societies, correspond to the number of societies it studies. However, it is obvious that listing these would require endless work, and that studying the Right of each would be useless. We must restrict our investigations, and the best way of doing this is perhaps by limiting our study in this and the following two books to the treatment of special-social Right.
483. Many particular societies can help the individuals who form them, and other persons, without being necessary for mankind. Some, however, are necessary for the well-being and progress of the human family. Mankind, this multitude of individuals, could not exist on earth nor develop towards its earthly perfection and immortal destiny unless it were ordered and bound together in accord with the stimuli provided by nature, moral relationships, and needs. Mankind requires organisation, and some societies are necessary because they are conditions and indeed constitutive parts of this organisation. Special-social Right cannot avoid dealing with these subjects to which our study will be confined. The next three books, therefore, will be devoted exclusively to the Right of societies necessary for the perfect organisation of mankind, without reference to other human associations.
484. Which are the societies indispensable for the perfect organisation of mankind?
485. The three following: theocratic, domestic and civil society.
486. This book deals with theocratic society; the other two with domestic and civil society.
I know, of course, that the phrase, `theocratic society', grates on many people, and I could easily have avoided it if I had wanted to attract my readers with something other than the truth. But I want to reason with my contemporaries; flattering them would do me no good. The presence of reasonable human beings in our modern world comforts and encourages me. I want to communicate with people prepared to reason about everything, including their own opinions, which they are ready to abandon if necessary. I want to speak to decent people prepared to listen to the end of an argument quietly reasoned in good faith. But I have to add that I am addressing all men and women because I know that all possess reason, even those who choke on the first word they hear opposed to their own feelings and passions.
There is no obligation to read the book; it can be opened and closed at will. Books are always courteous: they never talk to those who prefer not to listen; they keep silence when not questioned. But I do hope to obtain a hearing from readers inspired by noble, religious considerations, and struck by mankind's need for a perfect, divine morality if it is to attain salvation. I hope they will pay suitable attention to whatever in this volume is helpful and important for mankind, and take pity on anything which is or seems useless. Attention and criticism are in fact at home in such persons who never close the door on the truth, even if human prejudices obscure their goodness and wisdom.
487. On the other hand, the majority of those who detest the word `theocracy' take it in a sense different from that in which it is used here. They are afraid that people may want to profit unjustly in human affairs under cover of divine matters. But there are no grounds for suspecting that this book is intended to defend or teach this detestable abuse of divine things. Not a shadow of such sacrilege can be detected in what has been written. On the contrary, the dictates of decency, justice and religion have willingly been emphasised in order to free human society from such extreme danger which, however, cannot be avoided when injustice, irreligion or impiety set out to subvert the city of the Lord by what they consider a work of highest justice (although there is no chance that evil enterprises will further human happiness). Every decent person needs to be persuaded that the rights of individuals, of civil society, and of rulers are much more effectively guaranteed by the faithful fulfilment of justice in relationship to God than by the imposition of commandments, laws and temporal sanction related to justice concerned with human beings alone.
How could a truly religious person ever believe he was giving due honour to God if, under cover of religion, he tried to enrich and ennoble himself unduly? He would inevitably sense that he was dishonouring and offending God by depriving him of the worship of human hearts. A person truly desiring to give God what is due to God will never take as his own what belongs to society, to rulers, or to the least amongst mankind. He is extremely careful to give each his own. But those using any pretext whatsoever to be unjust to God show their injustice at the appropriate moment towards their fellow humans. It does happen that divine things are usurped and ruined, and God's kingdom amongst men assaulted, under the pretext of protecting and safeguarding human matters.
488. I believe that we must speak first about the society God wished to form with human beings, his creatures, even on this earth. We call this society `theocracy' for two reasons; first, because it was the word used by the most famous jurisconsults, all of whom were convinced that divine rights were not to be neglected, but given priority in the whole science of Right [App., no. 1]; second, because our examination of the matter has shown that the society between God and human beings constitutes the solid foundation of every other society: all other societies receive stability and consistency solely from this first, divine society. It must be a cause for amazement that recent treatises on Right, from a rational point of view, have neglected or even obliterated this most important element without realising that they are building civil society in the air, or bringing to light a dead branch of knowledge, an inanimate, headless monster. Such a way of dealing with Right, cut off from religion, has unfortunately legalised the modern impiety that gave it birth. But the separation of religion from Right and from the laws governing Right has gained spurious immortality through its insertion into popular constitutions, where impiety has punished with mockery and incapacity for social life those who doubt its usefulness.
489. But impiety, and all it sets out to achieve, cannot last because it tends to suppress truth and systematic knowledge by eliminating the elements it finds troublesome in them. Human beings have been united by their Creator with truth at the depths of their being, and soon turn back from their mistaken paths in order to seek the sublime element of truth they have discarded, unaware they were throwing away an essential, vital part of themselves. This explains the present universal return, so full of hope, to the religion of Christ which stands at the heart of civil society. A new ardour for Christianity seems to have taken hold of the peoples, rejuvenating religion which appeared to have lost ground in human hearts after nineteen centuries of triumph. Christianity is moving on towards its great destiny: after penetrating individuals, it must penetrate society; after reforming, enlivening and sanctifying every individual thought and longing amongst individuals, it has to do the same at the level of society.
490. It is certain that the influence of the Gospel could never have been brought to bear on human societies if it had not first worked upon individuals; nor could it have taken its place in the science of Right if it had not first been introduced into civil society, where it began its work as soon as rulers entered the Church. At that time, the Gospel suddenly started to correct and reform positive legislation. However, its beneficial light did not penetrate the rational treatment of Right until much later. This was rendered inevitable in any case by the late development of rational Right as a science, although the indirect power of the Gospel, exercised for more than fifteen centuries, finally introduced the first outlines of rational Right in the 16th century and enabled it to take its place amongst the sciences.
In making right immensely superior to fact, Christianity destroyed the dominion of fact in the world, and placed right at the head of nations as their only ruler. By adding to right its own light and dignity, Christianity gave such importance to right that it was finally able to appear before the world in its new guise as an independent, rigorously organised discipline. Christianity works in secret for the benefit of mankind long before its capacity becomes apparent. In this way rational Right, the tardy product of religion, appeared as the work of reason; religion, its progenitor, remained unrecognised in the background, although it had generated rational Right by perfecting reason and directing its acts.
Later, in the works of Grotius, a truly great man, the Gospel began to be mentioned, but the hour of the world and of the power of darkness soon caused the good seed to be trampled underfoot by the enemy when last century's godless publicists waged what seemed like victorious war against Grotius. Now, however, it is time to take in hand the work that had to be abandoned.(1) The difference between Christian and all other civil societies, between the baptised and the unbaptised, is so obvious that it attracts the attention of politicians of every persuasion. It is apparent also to non-Christian peoples prepared to admit their own inferiority, impotence and daily decline, a decline only delayed by their attempt to imitate the discoveries of Christianity. Secretly, these peoples live off the crumbs falling from our table.
491. The immense development unfolded in Christian society compared with that of other societies is a fact as clear as the midday sun to those not wishing to shut their eyes to the good wrought by divine society in the midst of human society. A treatise on social Right cannot abstract from the divine foundation on which the edifice of social Right is raised; the fundamental duties and rights have to be set out first if they are to take their place as support and complement of the duties and rights inherent to the edifice. For me, divine society is that formed by God with human beings, and brought to completion by Christianity; this is the society I call theocratic. Divine and theocratic are both suitable words for describing it.
Anyone not feeling deeply the need for such a treatise, and preferring to further his own prejudice by leaving the science of Right cut off from its vital element, should examine the condition of the family and the State deprived of true religion. Before Christ, how did the family and the State present themselves? How do they appear now in a Christian light? Such a comparison may not persuade our opponents, but it should certainly convince them of what we are saying.
492. Rights come into existence only if their subject exists; and they will be effective if someone exists to respect them. These two conditions can be fulfilled only imperfectly outside Christianity. Outside the sphere of divinely established religion, the very being of rights is defective, and their effect weakened or annulled. We will speak briefly about both these conditions, indispensable for the constitution and realisation of rights, and about society itself which cannot exist as a complex of rights(2) unless rights themselves can find a natural basis of subsistence. If we can prove that rights receive their full being and worth from Christian society, we shall have proved at the same time that this society is the basis of all others, and connected with them as the soul is to the body. It will also be clear that a science of social Right is bound to be imperfect if it lacks teaching on the first society which, mother-like, generates, nourishes and perfects all others.
493. I have maintained that outside Christianity the subject of rights is either lacking, or certainly weakened and attenuated. I must now prove this.
If activity is the first constitutive of right, it must be granted that the presence of greater activity denotes the presence of greater rights. It is clear, for example, that a baby has fewer rights than an adult because its activity is almost entirely restricted to that of feeling (feeling, although characterised by passivity, always requires some activity, as we have said).(3) As activity lessens in human beings, therefore, their existence as subjects diminishes.
494. The same may be said about personal activity, the second constitutive element of right. This depends upon the use of intelligence in human beings; the less it is used, the less a person is a suitable subject of rights. Hence, people suffering from insanity have fewer rights than the sane.
495. It is obvious that as decent, lawful activity (the fourth constitutive element of right) diminishes, growth in human wickedness and in unsuitability for a decent, well-ordered life lessens human creatures' aptitude as subjects of right.
496. It is undeniable that Christianity, by introducing divine love into the world, placed therein a principle of unceasing action that has immensely increased and perpetuated human activity; the new presence on earth of an indestructible principle of infinite understanding cannot be ignored. One obvious result of such a principle of freedom is the Christian's sense of his own individuality, which goes hand in hand with the development of his new power of liberty. In contrast, pagan mankind remains subject to fate, and apparently incapable of freely asserting itself. Christianity has certainly improved human behaviour and taught mankind every virtue.(4)
This divine religion has restored and increased in human beings the three constitutive elements, activity, understanding and morality, which form the subject of rights. Because all human societies are simply a complex or bonding of rights and duties, it is clear that the institution of Christian society must have influenced all other societies, especially domestic and civil society, by revealing new rights within them. Christian society possesses the creative power to extract rights from nothing, as it were, and it strengthens uncertain rights at their root by establishing them firmly. It founds and embellishes in mankind the subject of rights.
497. But there would be little value in bringing rights into being by saving and developing their subject, if human beings did not respect rights. Even the most factual of rights is valueless if unrespected or bereft of law or power strong enough to protect it.
498. Christianity, by recreating subjects suitable to be invested with human rights, not only raised up these rights from the decadence they shared with fallen human dignity; it also enabled rights to be respected by founding them authoritatively, by sanctioning the moral law that imposes respect for them (the fifth constitutive element of rights), and by recreating persons who would want to give such respect.
499. Christianity did not use force to recreate persons who would respect rights. Respect imposed by force is no longer respect, and its exterior trappings never last.
Christianity compelled human beings to respect rights in the best and most efficacious way by making people want to respect them, as we said. Christianity bettered the human will, and from that moment rights were respected. By providing the world with subjects possessing rights, Christianity also brought into existence those who would freely respect rights. In this way, the realisation of human rights was made possible, and their worth ensured. Domestic and civil society exist in strict dependency upon religious society, which provides for their very essence as well as their perfection. It is impossible to deal with Right in these societies without first speaking of the society in which they are rooted.
500. History proves our argument and shows its validity in every age.
501. Let us examine domestic society first, and consider the individual subjects of right found in it: father, mother, children and servants.(5)
502. The father is strong; the mother, children and servants are weak. All
the latter are sacrificed to the former, who is no longer a subject of right
but the source of violence and domestic tyranny.
Even if he were a subject of right, no benefit would be gained from dependants
who are incapable of feeling or practising the respect that is their duty.
503. What of the rights of woman as wife and mother?
Corruption is always found in non-Christian societies, although it may be present at one of two levels. As soon as society begins to decline, a woman is considered as an instrument for a man's pleasure. At the first level of corruption this instrument is simply degraded in the eyes of her user because the sense of human dignity is not altogether extinguished. At the second level, the degraded instrument is honoured, has great influence in society, and may even be divinised.
504. In the islands of Oceania and the forests of America, the weak sex in families of savages is loaded with the heavy tasks despised by the husband. Often the mother is as subject to her male children as to her husband. She is excluded from their table, forced to depend for food upon the scraps, left without assistance in need, even at the moment of childbirth when brute animals take loving care of their females. Husbands have a general right of life and death over their wives.(6) Without the light of Christian faith, uncivilised man is governed by a constant law that honours force, and despises the weakness he oppresses. Women, considered weak and despicable, are thus condemned to misery twice over.
505. In the East, women are cut off from domestic cares, and abandoned to the eunuchs; they are the victims of well-founded male jealousy, and condemned to perpetual imprisonment. Such a situation indicates the contempt in which they are held, although the general corruption is not so desperate that there is no brake to it. However, this only applies in so far as it benefits dissolute male strength which requires the woman to live for the man's sake. In India, for example, wives have to be burnt on their husbands' funeral pyre.
506. Nevertheless, the harems serving as prisons for women in the East still safeguard the remnants of morality to be found there. There is no doubt that without this kind of despotism, unbridled passion would have reached its lowest level, where empires and popular governments alike are overthrown.(7)
507. This second level of corruption is found in ancient Egypt. Diodorus of Sicily tells of men about to be married promising to remain subject to their wives in all things.(8) Everyone knows what kind of rule women exercised over men in Sparta, and how they ruined the republic.(9) At Rome they shook off the power of domestic rule and censure, and that of public rule and law.(10) The Senate tried in vain to restrain their excesses which finally undermined, corrupted and overthrew the Roman empire.(11)
508. Outside Christianity, therefore, woman is oppressed, or a source of corruption. Their rights are maintained neither by themselves nor by others. The subject of rights is lacking, rather than the rights themselves.(12)
509. Children in non-Christian families are not what nature requires them to be. Natural laws never retain full, stable force outside Christianity. In the family, all these laws are continually violated with impunity.
510. Parents think they have an absolute right over their children. They arrogantly fix their number; the fewer they are, the deeper the parents' corruption. Superfluous children are prevented or discarded by disorders practised against nature, by abortion, infanticide, selling, exposure. Such means are sometimes forbidden, but ineffectually, by the laws of the State; sometimes they are tolerated, or even permitted; finally, they are commanded, and then justified by the most serious of thinkers!(13) How different from the attitude of the apostles sent by the Word Incarnate! They condemned every evil found on the face of the earth because they had received the power to heal it.(14)
511. Servants living as strangers in the family had even ceased to be human, and consequently could not be the subjects of rights. The rule was: `A master cannot act unlawfully in his slave's regard'.(15) Cato, the holiest of men according to Seneca,(16) sent flocks of his old, sick slaves to market,(17) and in his treatise on agriculture advised others to avoid wasteful feeding by doing the same.(18) Owners left their slaves to die of on the Tiber Island(19) or used them to feed the fish in their garden ponds.(20) Experiments with poisons were carried out on slaves. They were tortured and punished with instruments that make one shudder.(21) If they coughed or sneezed, they were held guilty of serious crime;(22) if the master of a household was found slain, all the slaves in the place were put to death without trial: 400 perished at the death of Pedianus the second.(23) Female slaves, who underwent even greater cruelty at the hands of capricious Roman women,(24) also had to endure disgusting outrages from which their male counterparts were exempt, although the worst depravity of all consisted in the preference shown for young boys and the attempt to change their sex.(25)
512. Every part of domestic society, therefore, is defective and cancerous unless upheld by theocratic society. Mankind must first be instructed about Right in theocratic society if the rights constituting domestic society are to subsist.
513. Is there a less strict relationship between civil and religious society? Civil society cut off from religion (which if not true religion is not religion at all) is no longer a complex of actuated rights, but of injustices. In this case, society no longer exists jurally; its place has been taken by destructive, intestine war. Civil society, considered as a union of human beings in accordance with Right, cannot endure without the support of religion.
514. This was the unanimous opinion of the most far-sighted of pagan sages. Cicero says, `There is no doubt that loyalty and society would vanish, and with them the supreme virtue of justice, if respect for the gods were abolished'.(26)
Plutarch had this to say in a famous passage, `Travelling around the world, you may well come across cities without walls, literature, kings, houses, comforts, money, schools, theatres; but you never see a city without temples and gods. Such a city has never been discovered and never will be. It would be easier to build a city in the air than to found a city without gods'.(27) According to Plutarch, civil Right would be built in mid-air unless underpinned by Right proper to religious society. When publicists forgot this, they became responsible for the imperfection still characterising society and the science of social Right.
515. It is greatly to Cicero's honour that he realised the need for respect and reverence if social life were to exist, and indeed if the very possibility of society were to be present amongst mankind. In fact, he went further, openly recognising and declaring that such respect must be sincere, and free from deceit and pretence.(28) But it is impossible to find pure, sincere reverence unassociated with religious truth. Moreover, the foundation of any society can only be true religion, not a vague, general religion or what passes for religion but is in reality impious superstition. Respect and reverence, like every other virtue, is found in truth alone; the `useful' social deception shamelessly accepted and approved by some publicists as the only religion they recognise is a wicked slur on religion.
516. Right in Christian society, therefore, has to be considered antecedently to Right in civil society, at least by those holding Christianity as the true religion. Christian society is the sole support of both domestic and civil society.
517. Moreover, civil society is made up of families, and outside Christianity the family itself is no longer sound because the rights of its members either lack a subject upon which they depend, or have no power to command respect. Natural relationships in the family are violated or turned on their head. Civil society, formed to maintain the rights of all, cannot be established on this basis. If the families composing civil society are themselves devoid of justice, they certainly cannot practise it towards one another. Civil society no longer exists where chance, in the form of blind passion, rules in the place of Right, even though the yoke of passion is disguised by jural formulae.
Pagan legislation took this stance in its dealings with slaves, gladiators, foreigners, children, women, religious ceremonies, and other matters; public law converted great injustices into civil rights.(29) Consequently, these societies were unable to offer human beings a purpose, without which union between humans is no longer society, but an empty imitation of society.(30) Eternal justice, the source of temporal justice, had no sanction in such associations; moral activity, which alone could and would fulfil eternal justice, was lacking to them.(31) These mock societies, degraded by vice, lost their natural form in the degeneration which permitted them to take on one another's forms. In the East, for example, family despotism sometimes became civil despotism; at Rome,(32) civil despotism passed into the family and in the family, born of the republic whose form it borrowed, whole nations were taken captive,(33) as Tacitus says. In a word, it became a monster.
518. Family and civil society, therefore, require as their basis the greater society which God made with human beings, and which Cicero recognised as the source of all laws.(34) It is time to restore to the science of Right its first, fundamental and vital part, which deals with the rights of divine or theocratic society, and enable this science to be integrated and attain the perfection proper to its own form.
519. However, learned people, accustomed to rigorous, scientific method, may feel it out of place to want to introduce revealed religion (and Christianity at that!) in a treatise on rational Right. Let us reply to this scientific concern before going further, in order to prevent methods of procedure from prejudicing the essential core of the question, in which alone we are truly interested.
520. First, our aim in these volumes is to study the philosophy of Right, as the title indicates, rather than rational Right. Philosophy of Right means the philosophy of every right, and this is sufficient to free us from the shackles of a method concerned only with an abstract Right of reason.
521. However, we should point out that rational Right itself cannot abstract completely from certain facts concerning mankind.
522. If a philosopher studying rational Right wished to abstract from all
facts, whether natural or dependent on our will, he would lack a component part
of his science, and be unable to construct any portion of it.
The sole acceptance of human nature as a bare possibility would not provide a
way of initiating his study. Of itself, human nature does not include the fact
of coexistence amongst human beings; it requires only the possibility of
an individual who as such cannot possess rights in his own regard.(35)
Hence the study of Right could not begin without supposing two ideal facts,
that is, the possibility of human beings, and the possible co-existence of
several human individuals. The mind can only conceive of Right after having
perceived these two ideal facts or data because, as we have said, the concept
of right lies in a relationship between a plurality of intelligent beings.
523. It is true that the concept of right would be present, granted only the two facts of human nature and co-existence, but our systematic knowledge could make no progress. Only the first page of rational Right would be written, and the book we have produced on the essence of right would be sufficient to complete the treatise. Derived Right would be non-existent; there would be no possibility of dealing either with right as principle or with the way in which rights are derived
524. If special human rights are to be studied, it is necessary to posit in the treatise itself the titles from which they spring. These titles are ideal or possible facts, as we have said, to which the notion of right, that is, the principle of the science of Right, is applied. Special rights have their source in such titles in so far as the titles themselves take their place as objects of jural reason.
525. If rational Right is extended, as it must be, to the derivation and
determination of special rights, it cannot prescind from certain ideal facts
pertaining both to the essence and the accidental states of human nature
It now remains to be seen what facts have to be excluded from this science if
it is not to be confused with similar or coterminous sciences. Can religious
facts be admitted, and if so, which of them? If the principle of Right is
applied to religious facts, what special rights and jural consequences result?
526. In the first place, rational Right has to exclude the facts proper to positive Right.
527. Positive Right has certain facts in common with rational Right, and certain facts proper to itself.
528. Let us take any problem concerned with Right. For example, after the three years of non-payment of interest, is there a jural obligation of payment, or does the obligation cease through prescription? The problem can be solved according to rational Right, and according to positive Right. We have a fact common to both branches of Right. It is of little importance whether the fact is ideal and presumed, or real. Common facts, facts presumed as possible, are present in rational Right and positive Right as the concern of both kinds of legislation.
529. Besides these facts, there are others proper to positive Right. They are those positive laws which resolve cases of Right. Positive laws, that is, laws dependent upon arbitrary enactment, are the facts proper to positive Right.
530. We can conclude, therefore: the facts to be excluded from treatises on derived rational Right are the positive facts of the legislator, the arbitrary decisions of the legislator; in a word, the laws established by the will of the legislator.
531. In the second place, rational Right must exclude, generally speaking, the facts proper to applied Right. These are real facts, or more exactly the reality of these facts. Rational Right is not interested in knowing whether the facts or cases it considers really exist or not. It simply treats them as possible. Positive Right does the same. Laws are not made for real, particular cases, which are the object of the findings of the judge, who has to apply the law. If laws were merely decisions made in real, particular cases, there would be no need of judges; legislation and legislators would disappear. Only decisions would remain, without positive laws or judge.(36)
532. Nevertheless, an important exception has to be made to this general
truth.
It depends upon the distinction between real contingent facts, and real
necessary facts.
Rational Right has to prescind from the reality of contingent facts, but is
this the case with the reality of necessary facts? This question can be
answered only by first seeing whether rational Right is able to prescind
from the reality of necessary facts. And our reply is clear if we reflect that
necessary fact indicates a fact which, if thought as possible,
must also be judged to be really existent. In a necessary fact there can
be no separation between its possibility and its subsistence;
either the fact has to be prescinded from totally, or has to be considered as
subsistent.
Having made this qualification, we can now see that the scope of derived rational Right is to indicate, according to the dictate of reason, all the rights of intelligent beings in every case and circumstance.
Rational Right prescinds from the reality of contingent cases because
decisions about them would be endless, like the cases themselves. Moreover,
contingent reality is not necessary for the end in view. When rights have been
established according to ideal facts, real rights are immediately discovered by
the application of the ideal to the real cases. Ideal cases indeed contain all
that can be known about the real cases corresponding to them.
The possibility of this application arises from the separation, present in
contingent beings, between the ideal, possible case and the real case. The
latter, which is multiple, is seen in and through the former, which is unique.
But what must be said if the ideal case and the real case are so joined that they cannot be distinguished without their being annihilated? It is obvious that rational Right could not attain its purpose of deriving and determining all rights possible to intelligent nature without accepting this strange mode of facts that are necessarily real, but have no ideal separate from themselves to which they can be referred, and through which they can be known.
We have to ask ourselves, therefore, which facts are essentially real and not solely ideal. In formulating this question we are also asking about facts that give rise to real rights only, without reference to ideal rights. Such real rights are all those founded on the existence of the supreme Being whose reality is so necessary that a merely possible and non-subsistent God cannot be thought of. A possible God would be no God. Absolute being, and consequently being in all its forms, including its reality, is essential to God.(37)
Granted, therefore, that derived rational Right has as its aim the determination of all rights, it is evident: 1. that it cannot consider contingent facts except in their ideality; 2. nor necessary facts except in their reality.
533. Necessary facts, as we said, are those founded in necessary being. We shall call them, therefore, humanitarian-religious facts. There is no species corresponding to these facts, but simply the individual facts in the very nature of things. They have to be taken for what they are, and as they are, or as they have happened.
534. We can conclude that scientific method does not repudiate such facts. Scientific method has to harmonise and measure up to the end a determined science wishes to attain; a method rendering impossible the attainment of the proposed aim of a science cannot be wholesome. Derived rational Right sets out to expound `every species of human rights', including those which accrue to human beings from divine, necessarily real facts. The Right of theocratic society has every reason, therefore, to form part of rational Right. Without it, rational Right would inevitably be deficient, weak, and mistaken in its conclusions.
These arguments put to rest scientific unease about method. We can now begin our study of the first part of Right in particular societies, hoping that our description of the relationships and bonds uniting human beings with the supreme Being, will clarify, demonstrate and authoritatively establish the relationships and bonds between human beings themselves.
Distribution Of The Subject-Matter
535. In all societies, including theocratic society we must distinguish the three elements indicated in our treatise on universal rights (cf. 145-153): the seigniorial, the governmental and the communal.
These three elements, already outlined by us, will provide the subject-matter and divisions in the present book in which we shall deal in order with the seigniorial, the governmental and the communal rights of theocratic society.
Notes
(1) C. L. Haller has already paid a handsome tribute to H. Grotius in his Ristorazione della scienza politica.
(2) ER, 21-30.
(3) ER, 239. Hence pain cannot lawfully be inflicted on a child; it has the right not to be made to suffer.
(4) On these effects, produced in the Christian world, cf. Society and its Purpose, 451-493.
(5) Properly speaking servants, although living in domestic society, do not form part of it, as we shall see later.
(6) Caesar thus describes the condition of women amongst the Germanic tribes who, nevertheless, had not reached the level of degradation experienced by other peoples: `Husbands have the power of life and death over wives and children. When a noble head of family dies, his neighbours meet and normally, if any suspicion arises, decide whether to reduce his wives to the level of slaves' (De Bello Gallico, 6: 19).
(7) Despotism is one of the principal causes of serraglios and harems (cf. Montesquieu, De l'Esprit etc. 7: 9). - Despotic governments are more easily overthrown by immorality because corruption in a despot leads to ruin for his dynasty. Other forms of government fall only as a result of universal corruption. `The history of China presents us with twenty-two successive dynasties. There were, that is, twenty-two general revolutions, without counting lesser uprisings. - After the reigns of the first three or four rulers, corruption, idleness and softness would overcome their successors, living isolated in their palaces. The spirit, life and family of the dynasty goes into decline as nobles and eunuchs ensure the succession of children. Soon the palace and its useless inhabitants become a danger to the empire. The emperor is then assassinated or eliminated by a usurper who founds a family whose third or fourth successor, in his turn, shuts himself up in his palace' (ibid. 7: 7).
(8) Cf. bk. 1. In some parts of India, maternal lineage is held in such honour that daughters succeed to the throne if there are no male heirs. There are also women rulers in Africa.
(9) Cf. Aristotle, Politics, 2, 7.
(10) Cf. Montesquieu, 7: 10-14.
(11) Cf. Livy, Decad 4, bk. 4, c. 2. A speech of Cato, occasioned by the demand of the tribunes (under pressure from Roman noblewomen) for the abolition of the Oppian law, had this to say, amongst other things, about the women of his time: `Put a brake on bullying nature and the animal within you. There is no hope that women will act moderately if you do not.'
(12) When dissoluteness is supreme, women seem incapable of love. This is expressly affirmed by Plutarch in his treatise on love. Cf. also Xenophon in the dialogue entitled Serine. Seneca says: `When woman thinks in solitude, she thinks evil'.
(13) Tacitus describes as extraordinary the Germanic custom of not limiting the number of children (cf. De Morib. Germ. §19) - The Roman practice was for the new-born to be placed on the ground at his father's feet; if the father did not pick him up, he was disposed of .- Later, the law allowed only defective and female children to be exposed. Then girls were protected by law, but without practical effect. - According to the law of Lycurgus, babies had to be put at the feet of the elders of clans and tribes who, after examining them physically, would decide whether to have them brought up or exposed (cf. Plutarch in Lic.; Müller, Dor., p. 194; C. F. Hermann, De Causis turbatae apud Lacaedemonios agrorum aequalitatis, Magdeburg, 1834). - Exposure of children in China is a well-known historical fact. Descriptions of the unnatural methods used by parents to dispose of unwanted children make horrifying reading (cf. Recherches philosophiques sur les Chinois, Tom. 1). - It is sufficient to read the outstanding authors of antiquity to be convinced that this plague, which eats away at the essence of domestic society, is incurable without the intervention of Christianity. Plato and Aristotle were prepared to defend it! (cf. Republic, 5, Politics, 7: 16).
(14) St. Barnabas, a disciple of our Saviour, says in what remains of his letter to the early Christians: `The foetus is not to be aborted, nor killed after birth. Treat your son and daughter with discipline, and from infancy teach them the fear of the Lord.'
(15) And: `No injury can be done to a slave'. Cf. the Aquilian law, patronised by Caius Aquilius Gallus, Digest bk. 9, c. 2, lex 2 and 27; cf. also Cicero, De Clar. Orat. 34.
(16) `Could the gods have found a holier man than Cato to persuade rather than command mankind?'. Controv. bk. 1, praef.
(17) Cf. Plutarch, in Cat.
(18) Cf. De Re Rustica.
(19) Cf. Dio. Cass, bk. 60; Suetonius in Claud. 25.
(20) Cf. Pollio.
(21) In one of his plays, Plautus describes some of the furnishing found in Roman houses. It resembles the equipment of a torture-chamber. Modern languages, formed under the influence of Christianity, lack equivalent words to indicate such vile instruments:
Goads, metal plates, crosses, leg-irons,
Whips, chains, dungeons, fetters, neck-restraints.
As. 3, 2, 5.
(22) Cf. Seneca, Letters 47, 122, where there is a full description of the treatment meted out by masters to their slaves. Cf. also Macrobius Saturn. bk. 1, c. 2.
(23) Cf. Tacitus, Annals, 14, 44. Necessity was used to justify this law. Injustice thus became necessary, made such by preceding injustice! Things had come to such a pass that mankind thought it impossible to continue to exist without injustice. The subject of justice had, in fact, perished. Allow me to quote the words used by Tacitus to justify the injustice of men who knew nothing but injustice. Tacitus' argument may be summed up as follows: further injustice becomes necessary to maintain in force previous injustice which, through loss of correct ideas and language, came to be known as public utility. This is what Tacitus actually said: `Afterwards we have nations in families, with their different rites, when their external sacred signs are practically nothing. At this stage, you will not produce any result without fear.' - `But innocent people will perish!' This is the objection. And he answers: `This is like a flogging in the army. When every tenth person is beaten, even the strong take fright. Every bad example contains SOMETHING WRONG, which is used against individuals for the public good.'
(24) Cf. C. A. Boettinger, Sabine, ou matinée d'une dame romaine.
(25) Cf. Suetonius in Ner. c. 28. - `Reports about the revolution at Constantinople, when the Sultan Ahmed was deposed, say that people who pillaged the house of the kehaya did not find one woman there. It is said that things had come to such a point at Algiers that there was not one in most of the harems' (Montesquieu, De l'Esprit des Lois, bk. 16: 6). - On the condition of slaves cf. M. de Burigny, Sur les esclaves romaines, in Tome 35, Mémoires de l'Académie Royale des inscriptions et belles lettres. - cf. Goguet, Origines des Lois, etc. Tome 3.
(26) `If piety towards the gods is done away with, I am afraid that trust and the society of mankind and that most excellent virtue, justice, will all be eliminated with it' (De Natura Deorum, bk. 1: 2).
(27) Adversus Colot., bk. 2.
(28) `Piety and the other virtues, along with holiness and religion, can have no place with PRETENCE. But if virtue is eliminated, unease and confusion prevail in life' (De Nat. Deorum, bk. 1: 2).
(29) Bonald is right when he says: `It is a sign of ignorance to exaggerate disorders amongst Christians on the one hand, and the virtues of wise pagans on the other, without realising that part of the evil amongst Christians can only be seen in the light of what is essentially virtuous Christian society. Elsewhere, goodness is noticed because other societies are essentially vicious. Christians may indeed do wrong, but their law, which is correct, can and must set things right with its own authority. Amongst idolatrous and non-Christian peoples, life may be decent, but the law is always tainted; and in the last analysis life always conforms to law' (Essai analytique etc. p. 102).
(30) As we have shown: cf. SP, 235-262, 265-282.
(31) In the Moral System, which prefaces the Philosophy of Right, it was shown that only the Christian religion: 1. gives sufficient sanction to morality; 2. endows mankind with moral activity. True and perfect civil society is impossible without these two elements. Cf. ER, 214-222.
(32) Cf. SP, 337-344, 371-391.
(33) Nationes in familiis habemus. Ann. 14: 44. - Sometimes a single Roman citizen had four or five thousand slaves. Cf. Pliny, bk. 33, c. 10 - Juv. Sat. 3, 140.
(34) De Legibus, 1.
(35) Cf. ER, 299.
(36) Cf. ER, 49-53.
(37) Cf. Certainty, 1044-1377. Malebranche had some notion of this truth, without being able to express it exactly. He wrote: `Nothing finite can represent the infinite, and the idea of God is necessarily God himself.' These words: l. suppose falsely that the idea is a representation, which it is not; and 2. state that `the idea of God is God', instead of saying that no positive idea of God is possible, but only a perception of God.