Return to Contents

ALTERATIONS TO THE RIGHTS OF OTHERS;
CONSEQUENT OBLIGATIONS AND
MODIFICATIONS OF MUTUAL RIGHTS

1641. The notion of right demonstrates the inviolable quality of right.

Every right is inviolable by force of the moral law which forbids us to cause displeasure to a person; this moral law becomes jural also as soon as we are dealing with some displeasure consisting in the separation from a person of something he has lawfully made his own.

1642. Displeasure is of its nature a physical evil for the person suffering it, and a moral evil for the person who, through lack of respect for another's personship, causes the suffering. This is precisely the case in jural injury by which an attempt is made to separate from a person that which he has lawfully attached to himself with the bond of ownership (cf. 922-924).

1643. An infraction of this kind is always a moral evil at any time, in every place, and in any circumstances whatsoever. If circumstances could exist in which the infraction of a right ceased to be a moral evil, the right would already have ceased to be a right. In the same way, if a law were found to be unjust, it would no longer be law.

1644. People who deny this and admit true collisions of rights, as well as those who maintain that respect for rights is an obligation which ceases as circumstances change, not only err in the way they express things, but actually confuse concepts. According to their way of expressing themselves, right would receive its force and require respect only from outside, that is, from external circumstances. Morality would then be reduced to a calculation intended to solve the following problem: `Given such and such circumstances, is respect for others' right useful or harmful?' In this system, justice is sacrificed to utility, both private and public. Any government where such a system rules, whatever form it takes, is overwhelmingly despotic.

1645. On the contrary, right depends only on those facts or external circumstances that constitute it. Once constituted, it has an obligatory force independent of all other exterior circumstances not constituting it, and is therefore independent of any relationship whatsoever of utility or non-utility that could accrue to human beings from the respect they give or do not give to it.

1646. The inviolability of right, therefore, is always the same:;
1. whatever subject it belongs to;;
2. however long the time since the formation of its title, provided the title has not been removed, forgotten or rendered doubtful;;
3. whatever circumstances render respect for it useful or non-useful; finally;
4. whatever the means with which one thinks that right can be violated with impunity.;

We now have to consider each of these four points.

1647. Both individual and social subjects are capable of rights. The social subject is composed of more than one individual subject; the social body has a single will because all the individual persons composing it have a common purpose.

1648. It is clear, however, that the particular subject to which right pertains does not render right respectable; this is done by personship in general, which requires such respect, and is found equally in every subject capable of rights.

If we apply this teaching to the two species of subject, individual and social, whom we have mentioned, we can succeed in overcoming a truly pernicious error which is sometimes manifested as deceit, sometimes as prejudice, sometimes as flattery, sometimes as oppression, but always as a source of tyranny. This error is present in those who think that right, when connected with a social body, or in general with a more powerful subject, must prevail over the same right when it is connected with an individual or weaker subject.

1649. We must first note that individual persons, when they become part of a social person, acquire only an additional relationship without destroying themselves in any way.

1650. When we find ourselves before a society composed of, say, ten members, how should we consider it relative to its rights? Methodologically,(482) we have to consider it as a new person, distinct from the persons of its ten members. It will be as it were an eleventh person, to which each of the ten persons has a similar relationship. In this way, the rights of each of these eleven persons will be equally worthy of respect. We will not stop to examine which is the collective, and which the individual person. That will make no difference to us; we will always have an equal duty to respect that which pertains to each of these eleven jural persons.

1651. The nature of personship is to subsist without its being confused with anything else, that is, it exists in a totally independent way. Similarly, the society of which we are speaking presents us with eleven persons jurally independent of one another and equal (that is, equally worthy of respect relative to their own rights).

1652. How unfortunate was the result of our failure to understand as we still fail to understand that respect is owed to a person, whether the person possessing right is individual or collective!

People thought, or seemed to think, that the right pertaining to a collective person was greater than that pertaining to an individual person. Consequently, it was presumed that the collective person, or society, or whatever other name the people was called, could exercise its own rights by freely sacrificing those of individual persons. Society, or whoever stood for society, then became totally despotic. Individual persons were lost to sight or rather absorbed, as it was thought, by society, and annihilated as they came to form part of the social body. It was as though human individuals could be destroyed or destroy themselves merely by acquiring one more simple relationship such as the social relationship. In a word, a single person, the social person, was all that was wanted. But as we said, this was nothing more than show. If all the citizens are sacrificed to the few who are masters, not citizens, and hold the reins of the State in the name of society, what remains of society?

1653. This is not a new error (what error is new for humanity?). I have already noted elsewhere that things in society acquire an artificial value incomparably greater than their natural worth, and that human beings sometimes value their social existence, to the extent of forgetting and despising their individual existence to which they return only when nature finally recalls reason back to the interior life after its wanderings abroad.

It can be said that the radical vice of ancient civil societies was to obliterate the personal dignity of the individual; the individual was destroyed by means of social despotism. Christianity, and only Christianity, protects the weak against the strong, the individual against the totality, by illuminating the invisible, spiritual interior of the human being and destroying the overpowering illusion which the social mass, like everything great and powerful, produces with its sheer size and materiality. People did not find their greatest good within themselves, but sought it without, externally. Society was everything for them, and they obeyed it as their highest good.

This supposed supreme good thus became the source of pagan justice, which was true injustice. And if the society in question was small, that did not prevent its amassing injustice. A maxim common to all peoples held that their laws did not recognise injustice towards those who found themselves outside society.(483) This was the reality, although a few weak protests were made on behalf of reason [App., no. 12]. The blame levelled at the Spartans and the Cretans(484) could have been aimed at the whole of the ancient world: love of country was the greatest virtue; it created a climate of opinion in which everything could be just or unjust.

1654. This opinion cannot be sustained, as it is today, on the basis that the good of society is of assistance to all, while individual damage harms only a single person. The Gospel has taught us that evil cannot be done to obtain good. Otherwise, it would be lawful to infringe any right with impunity provided that, as harm was done to one person, there would simultaneously be some intention and hope of assisting just two other people. If the principle is valid, it must be universally valid.

1655. Nevertheless, this does not mean that private good must not often give way to public good. It must give way, when `give way' is understood correctly.

1656. Private good has to cede to public good if all the members of a society are equally burdened in proportion to the advantage that comes to them from the society, and if the imbalance which could be present when the burden is laid upon all is afterwards rectified. In other words, the sacrifice imposed upon one member at a moment of urgent, sudden need(485) will, at the proper time, be evened out as other members compensate him for what he has expended. In this way, it is true that private good has to give way to public good if by private is meant the good of all the individual members of the society; it is not true if private good is understood as that of a single member of the society.

1657. These comments must be applied to any society whatsoever because, in relationship to right, a collective body is only a jural person equal to any other individual. Between the collective body and its members, and between it and all other jural persons not its members, jural relationships exist and jural questions can arise, just as they do between individual persons. But these questions must be resolved by the principles themselves of universal justice.

1658. Thus it is not lawful even for civil society to absorb its members in itself, devouring them, as it were. It must leave them to live, along with itself, in their natural quality as jural persons, separate from and equal to itself, and worthy to be treated on a par with itself, that is, according to the principles of the same Right. I am speaking here, as everyone will understand, of civil society in general, independently of its form and of the way in which it could be administered.(486)

1659. There is some difficulty, it is true, in separating that which forms the collective person called civil society while leaving intact at its side individual persons who exist per se and are, at the same time, members of the collective society. Such a concept requires methodical abstraction because individual persons on the one hand have to be considered without their quality as social members while on the other the social person has to be taken as an aggregate of abstract human beings, that is, human beings taken simply in their relationship as members.(487) This cannot, however, be avoided.

These human beings are abstract in so far as they are considered simply as subjects of rights which arise from their existence as members of the social body and in so far as abstraction is made from their other ties. Nevertheless, despite their existence as subjects of such rights they are and always remain individuals. The abstraction they undergo is indispensable to the science of Right because right itself is only a relationship. If we try to do without it, we shall see that serious errors cannot be avoided.

1660. Wishing to prescind from this abstraction, we would have to suppose that being a member of civil society and being a human being were one and the same thing. It is clear that in such a case the individual would be destroyed, and that nothing would be unjust for society. Only by starting from this supposition can one say with Vattel, for example, that the State is obliged and has the right to preserve itself, and go on to add without further distinction, as Vattel does, that the State has, as a result, the right to all the means that are suitable for this end.(488) According to this teaching, there are no unlawful means; nothing is unjust for the State when its self-preservation is in question. It could keep itself in being by having thousands of innocents slaughtered if this were necessary. Such teaching is absurd, cruel, brutal and truly sickening.

Neither civil society, nor those who act on its behalf, can ever act unlawfully or unjustly, even for the sake of preserving society. Human beings exist independently of civil society; they are not human beings because they are members of such a society. Belonging to civil society is, as we have said, simply an additional, accidental relationship superimposed on humanity. We must not confuse human beings with a simple relationship; that would be disastrous. Let civil society perish, therefore, if need be, so that individuals may be saved; individuals must not perish so that civil society may be saved. Civil society can be dissolved and reformed, but without necessarily destroying the human individual who will lose for a moment his quality as a social member or rather, will cease to be a member of one society in order to begin to be a member of a newly formed society. As we have seen the citizen must serve the human individual, not the individual the citizen. Properly speaking, society is the means, and individuals are the end.(489)

1661. Civil society, therefore, and the individuals composing it must be regarded, relative to Right, as persons who each have a different, independent sphere. Each and everyone of the jural duties which we have explained binds equally the individual and the social person. In the same way, there is no right which cannot equally have as its subject one or other of these jural persons. This is clear of itself, but it is also important, and we shall therefore try to clarify it further by briefly reviewing first rights and then duties.

1662. Civil society, like the individual, can: 1. occupy unoccupied goods of any kind whatsoever; 2. defend lawfully occupied goods against any aggressors whatsoever; 3. require recompense for injurious damage sustained by these goods; 4. administer and use its own goods.

1663. At the same time, civil society, in all these four principles and their exercise, must follow the common rules of justice which we have noted; it has no advantage or privilege over its members relative to such rules.

Civil society, and the government acting on its behalf, is bound to observe in its exercise of these general rights the moderation by which such rights are of their nature restricted relative to other jural persons, both social and individual. Hence:

1. It can occupy what it finds unoccupied, but in such a way that others are impeded as little as possible from occupying what remains.;
2. It can defend its rights against aggressors but in such a way that it does them as little harm as possible; in other words, it inflicts only sufficient harm to defend itself.;
3. It can require and even obtain forcefully recompense for harm suffered either from a collective or an individual person, although the recompense cannot exceed the harm it has suffered, nor can this harm be used as an excuse to savage others or inflict other harm on them.;
4. It can administer and use its goods, but even this has to be done with the least disturbance to others, and without inflicting harm on any other jural person, social or individual. The rights of civil society (a jural person equal to, but no greater than any other person) are themselves limited by contact with the rights of others.

1664. It is true that civil society, although considered before the law of Right as a jural person equal to and not greater than other jural persons, is considered, under another aspect, as a person with special characteristics. We shall, however, take its proper notes into consideration in social Right when we no longer deal with the notes it has in common with all jural persons. At this point, while considering civil society simply as a jural person, we realise that it is false for civil society, as a jural person, to limit the freedom of other human beings in a way greater than that exercised by any other individual person when co-existing with others. All co-existent jural persons limit one another reciprocally by their possession of rights; in other words, they limit the innocuous freedom of others by impeding both the occupation of things already occupied by themselves and actions which injure their rights. We can say, therefore, that society under its jural aspect limits human beings in their rights in the same way as human beings limit one another.

1665. Rights, and the tempering of rights, which pertain to civil society in its relationships with other persons inside or outside itself, pertain equally to other persons in their relationship with civil society. This is the only way to establish jural relationships between the individual and society, and to resolve the difficulties and complicated questions which can arise between these two jural persons.

1666. In any case, pure love of truth should lead us to confess that human rights in general have always been oppressed and unacknowledged. This came about because society or social government was always stronger than separate individuals. And by society, or its government, I mean the majority of influential forces, if not always the majority of persons. It is indeed extraordinary to see that the remedy often proved much worse than the evil. Now and again, as oppressed individuals arose, people claimed to free them from oppression. But each of these saviours attempted in his turn to rise to a level from which he could tyrannise society. In this reaction of individuals to society, individuals themselves underwent greater servitude; the oppressor was no longer our tired or enchained society, but individuals who strove to outdo one another in oppression. No one is ignorant of the terrible experience of dominant oppression imposed by the crude, brutish, military force that sprang to the defence of the declaration, proclaimed by the constituent Assembly (1789), of human rights and the citizen. It was not society, but the most daring, rowdy and violent individuals who exercised the greatest tyranny over society itself. An English radical wrote, only too truly, that the declaration treated human beings `as insane rulers, who had been granted full power on condition that they used it only according to a code of law which regulated the least of their actions.'

1667. Civil society, therefore, injures human rights in all the ways in which individuals injure one anothers' rights. Hence 1. it injures the rights of freedom of particular individuals

a) every time it impedes their occupying actions and things, without lawfully occupying them itself; or;
b) restricts in any other way the activity of individuals to a greater degree than required by its own need.

1668. 2. It simultaneously injures the rights of freedom and of ownership by entering into the rights of lesser societies, or of individuals, and appropriating objects for itself either

a) through foolish pride which, under the title of public authority, thinks it can achieve everything, and uses this title to mask its injustices; or;
b) under the pretext of its own advantage and the increase in common good, which cannot be promoted if it harms anyone. As we said, if it were lawful to harm unjustly a single human being to the advantage of twenty million, it would be equally lawful to sacrifice nine million nine hundred and ninety-nine thousand to save ten million.;
c) Society also harms others' rights of freedom and ownership every time it prevents their owners from using or defending them, or obtaining recompense for them. Harm also results when it renders recompense more difficult, tardy, costly, accidental and so on, than it would be if compared with the use of private means pertaining to the state of nature.

1669. 3. Society injures others' rights again when it does not avoid, in the use of its own rights, everything that could offend others, and when it does not employ, within the confines prescribed for it by jural sphere of others, the greatest circumspection in their regard.

1670. 4. Again, it injures others' rights when it fails to temper the defence of its own rights, or its demand for recompense.

1671. 5. It injures others' rights again when it permits some individual, or body or class of people, to do wrong to another in its name, or when it helps another to do this by providing moral or physical force, or by not preventing another when it can do so.

1672. It is true that all these injustices normally contain something material and something formal, that is, ignorance and lack of consideration on the one hand, and greed and malice on the other. Generally speaking, even an upright will is not sufficient to avoid all acts which are of themselves unjust. In many cases, it is difficult to decide what is just and what is unjust, and the extent of the boundaries of rights. This explains why the greatest experts, legislations, national opinion, tribunals in the same nation and the decisions of identical tribunals are often at variance in their conclusions about cases of jurisprudence.

I certainly have no desire to exaggerate injustices for the sake of rhetoric (we have already had too much of that from deceased demagogues). Let us also grant that many of the injustices committed by society or its government in all ages and throughout all nations must be attributed in great part to the obscurity in which the science of public and private Right was found and still is found, and to an excessive adherence to positive legislation. We could also grant that the concept of civil society has not been sufficiently clarified; it has indeed remained complicated and vague until now as a kind of Proteus of the moral world which, under a thousand forms, slips from your hand when you want to take and bind it as you would every other determined jural entity with the thongs of definite rights and duties. In the midst of such obscure, uncertain teaching, self-interest and passions inevitably play their finest tricks.

Nevertheless, decent people came to suspect, and indeed are now certain, that the jural decisions first presented to them are often misleading, or that the difficulty of finding the truth is immensely increased in one's own case. They reflect on the obligation they have to instruct themselves delicately and impartially about the science of justice, and to be very cautious not to injure others' rights in the exercise of public authority. Each person injures these rights when he neglects careful knowledge of the right way, places obstacles to the discovery of truth and, because of his own self-certainty, abhors jural discussion. Civil society has this duty far more than individual human beings because its peculiar responsibility consists in making justice prevail, and thus be known.

We have to conclude, therefore, that civil society must take every care to ensure that reciprocal individual and social rights be placed in the greatest possible light for the sake of finding the correct decision in every case, and that society itself bring to an end the danger of infringing others' rights through ignorance.

6. Civil society already offends against others' rights simply by impeding public knowledge of a) moral cognitions and everything that could throw light upon doubtful cases where reciprocal rights and duties have to be determined; or b) by slowing or impeding the verification of the rights of individuals through restriction of their recourse to any action or discussion whatsoever which would serve to unveil injustice of every kind or to defend or vindicate justice in anyone's case. Vain motives of prudence, or claims that the credibility of its authority is better safeguarded, provide no excuse for behaviour of this nature.

1673. Applying the teachings already explained to special cases, we have the following results: 1. The opinion which considers all unoccupied sections of land as belonging to civil society restricts unduly the natural Right of occupation proper to individuals, at least in cases where the public authority, without immediately undertaking the cultivation of these lands, purposelessly leaves them sterile.

1674. 2. All restrictions by civil society placed on the freedom of its members injure their right to indifferent actions which are not per se injurious to society. Such restrictions are superfluous, and indicative solely of the vanity of authority.

1675. 3. Patents granted to inventors of something useful are wrongly called `privileges'. They are simply a defence, provided by civil society, of the inventor's right. It is undoubtedly just and fitting that civilised societies should stabilise the existence of ownership whose subject is works of human ingenuity. For example, our own civilisation presents itself in a favourable light when taking the trouble, as it does, to provide a solid base for copyright laws. But these dispositions, which spring from common laws about ownership, must not be called privileges. Nor must they be called `sovereign favours'; that would mean falsifying ideas falsified ideas are inevitably abundant springs of injustice and calamity.

I cannot see, however, that the same comments could be applied to those true privileges which are sometimes granted to a person who is allowed the exclusive exercise of a trade or craft that he has not invented. If such a privilege is granted, the natural freedom of all other persons is restricted by their exclusion from the exercise of that trade or craft; if public authority favours some person or family, or provides them with some advantage, all other individuals are injured in their rights.

This comes about because they find their freedom restricted by means of words alone, and not by lawful fact. As we have seen, others' freedom to actions and to things can never be restricted by words, but only by lawful fact, that is, by prior occupation. The natural right of a craftsman extends only to the possibility of depriving competitors of their earnings by means of the superiority of his own output and marketing. Such excellence provides him with the lawful fact enabling him to occupy available earnings before anyone else. No one has any cause forcomplaint against him because every person is master of what his ability enables him to occupy before others. On the other hand, if an excellent craftsman or manufacturer is left high and dry as a result of people's ignorance of what is good for them and of their blind attachment to custom, the government may bring this craftsman and manufacturer to the people's attention by informing them of the available advantages. The government itself may even use these workers, and employ its own powers to persuade others to do justice to them. But it may not go further.

This explains why a government which makes some means of income exclusive to a person or family is usually the object of animosity. The people's good sense wants to know why the freedom of many craftsmen should be restricted for the sake of a single worker, who might be worthy of the privilege but would have had no need of it if his own predominance had enabled him to capture business from others. - The people's first feeling, and this is especially true of the other craftsmen, finds such privileges offensive. It seems to them that they have been unjustly restricted in their rights not by prior occupancy, which is the only lawful way of restricting others' freedom, but by mere words supported by governmental force. Insult has been added to injury.(490)

1676. The question of curbs placed on trade is in many ways more difficult. If the government decides to impose curbs for the sake of public utility, it will be the responsibility primarily of political economy to judge whether such utility will result from the particular fact in question. But everyone knows that freedom of trade is a question which splits economic theorists irreconcilably. If we abstract from the special circumstances of nations and particular States and consider only human beings in one and the same family, free trade is obviously beneficial and moral; restrictions on free trade are a disaster for the human race. But we still have to see if such curbs could be advantageous when considered in relationship to the particular good of a nation or a region, at a determined time and in determined circumstances and external relationships. Here I have no hesitation in accepting the opinion of those who maintain that customs and other curbs of this kind can be advantageous for the special regions for which they are established, provided they are moderate and used for exceptional cases in other words, they are simply provisional, temporary laws.

But are such curbs fair in relationship to other peoples when it is agreed that they are harmful to mankind as a whole? Are they just relative to all the individuals of the society for which they are established when the immediate advantage of such provisions is enjoyed only by certain determinate classes of persons, owners, traders and manufacturers?

The question of free trade has scarcely been considered under this aspect of justice, although it is the principal point of view from which it should be examined if indeed it is true that justice precedes every other question and interest. The following reflections may be submitted, therefore, to wise people who may want to resolve the matter by taking it further.

Considered in general, competition through honest means is a natural right relative to all kinds of earning. No one can prevent another from earning except by occupying beforehand, through competition, what the other would have earned. Such pre-occupancy, as we call it, comes about through expeditious effort and greater industry. To limit, by an act of will alone, others' freedom to earn and in general their freedom to acquire some other good or occupancy, is an infringement of Right even if the limitation is supported with force. A private individual could not do this; the government, therefore, cannot do it in favour of an individual. Generally speaking freedom of trade is founded in natural Right and is therefore inviolable.

Applying this general principle primarily to the relationships between nations, and then to individuals of the same nations, we have the following results. Relative to nations, it seems to me that it is always possible (when nations are agreed in recognising the obligation) to make just agreements or trade treaties which would not be intended to balance materially the burdens variously imposed on the import and export of products and manufactured goods, but to maintain intact freedom of trade by allowing reciprocal compensation and recompense in so far as free trade benefited one or other of the parties. The compensation and recompense could be derived from the right of ownership that each nation has over the territory of the land it inhabits. One consequence of this would be the exclusion of foreigners whose trade would thus be impeded indirectly. If such agreements are possible, they are also obligatory as a means of safeguarding simultaneously the freedom of private individuals and the national interest. Hence, if one of the nations refuses to enter into such agreements based on freedom of trade, the other acquires by the very refusal the right to curb the trade of this nation. Tariffs and curbs are thus legitimated by being brought into the Right of self-defence.

Relative to individuals and different classes of persons within a nation, government can impede the universal right to exercise the same branch of trade or industry by favouring certain individuals or classes if this is helpful to the public good. This, however, depends either upon the willingness of individuals and classes to give their assent to laws which prevent their competing in these activities, or on due compensation. Otherwise, their right of freedom would seem to have been violated.

1677. 4. We have indicated three ways of injuring natural freedom. We shall now give some examples of injury to ownership.
Extreme injustice is found in that system of absolute dominion which gives government direct ownership over all the goods of the citizens without some foundation of special fact, such as the buying in of food under Joseph in Egypt. This monstrous system springs from two different sources: one proper to ancient times when nations were still barbarian; the other pertaining to the present, and proper to corrupt nations.

Barbarian nations abused the principle, which is true in itself, that public authority comes from God. Ignorant people, always extremely eager to behold marvels, were led to make of public authority a being which in some confused way could do all, know all and see all a being which could not be suspected, spoken about or thought of without sacrilege. When reduced to such a deformed kind of concept, public authority not only does whatever it wants but, after deceiving others, deceives itself about its own nature and comes to believe that it can do everything without having any duties of its own. Obvious injustices then become merciful dispositions on the part of the most imaginative authority. This is an example of the fourth kind of injury mentioned earlier.

1678. 5. In modern times, whenever unbelief took the place of superstition, unlimited authority endeavoured to take on new forms and justify itself more subtly. Instead of stating that government can do everything because government comes from God, it was said that it can do everything because it comes from the people, and has the public good as its object. Self-interested flattery gave a philosophical form to theories about absolute monarchy;(491) later, this kind of flattery became the servant of every sort of demagogic passion. The fact remains that not even society as a whole can detach itself from the laws of justice. The principle of common good is valid relative to the innocuous freedom of individuals as such (that is, when the government occupies what individuals have not occupied); but it has no validity whatsoever relative to ownership.

Civil society may indeed restrict innocuous freedom by prior occupancy, but not by laws and force. This is a part of common right, and any other person can do the same. The only difference is that civil society, that is, its government, must do this for the common good; individuals as such can do it for their individual good, just as they can do it for the common good.

1679. We have to add only that the purpose for which civil society was instituted gives it a special power, not possessed by individuals as such, over the restriction of the right of an individual's ownership.

Society is instituted for the good of the individuals who compose it. The good of civil society, therefore, can only be the common good of its members. The good of an individual, on the other hand, is his own individual good, and nothing more. Consequently, while the individual person does not possess the right to restrict the rights of others for his own good, civil society does possesses for the common good a part of that faculty relative to the persons who are its members.

An example will help to clarify the matter. Let us imagine that civil society, when disposing of a piece of land belonging to one of its members, provides him with a part in the common good sufficient to fully compensate the harm done. Note that some great common good is insufficient as an outcome; it is necessary that the person who has been harmed should share in that good sufficiently to receive adequate compensation; otherwise he suffers an injustice. But, granted this natural compensation made from the common good or elsewhere for the person who has been harmed, government has every right to commandeer from this person's ownership. We prove this as follows.

We have seen already that each one must use his own rights in such a way that the minimum disturbance and restriction of advantage is inflicted on others. Modality, therefore, in the use of particular goods is never the object of true right(492) when the entire good which forms the object of right has been safeguarded for the owner. Every owner must be prepared, in accordance with the law of reason, to cede the objects of his rights when this is necessary either to lessen the disturbance suffered by others or to increase their well-being, provided that he is compensated and recompensed to the entire value that his goods can reasonably be expected to have. Government, which is responsible for the common good, can lay claim to others' land for the sake of public good in two cases:

1 when the resulting public good is shared by the owners in such a way that the harm they suffer is fully compensated;;
2. when civil society compensates the owners fairly by requiring the person who has benefited to make up to the owners for any incomplete compensation from the common good.

Outside these two cases civil society, and those who govern on its behalf, has no right to use others' ownership.

1680. The first of the two cases is verified when there is danger of some barbarian invasion threatening the life of the citizens, the integrity of their women, religion, civilisation, freedom and every other greater good, even of material ownership. No one would deny that in such straits society has the fullest right to dispose of everyone's wealth. All the citizens are greatly compensated by the defence provided for them by their government. If, however, one single citizen could certainly escape from these calamities, civil society could not commandeer his ownership in the same circumstances without being obliged to compensate him for what it has taken from him. This person certainly has no jural duty to burden himself with arrangements for unnecessary defence. However, other members of the society may need this defence. If so, society's duty is to divide the burden equally between them while compensating those who were disproportionately burdened during the crisis.

The second of the two cases is far more frequent. We may think, for instance, of new roads or other works of public utility. In such cases, the owner is obliged to sell his land or house to civil society which must provide a reasonable price as compensation for his ownership.

1681. Questions could arise about the determination of the price: for instance, does sentimental value have to be taken into consideration? If so, what limit will be placed on it? of its own nature, affection is extended indefinitely.

We shall find an answer to such questions if we return to moral principles. We reduced morality to a correct judgment made about the worth of things.(493) When we esteem things, we ought not to abandon ourselves to caprice; we have to value them for what they are worth. But there is no place for any right whatsoever outside morality and just esteem. Disordinate affections, therefore, which do not arise from upright human nature cannot provide us with any right. It is true that affection for persons can never be excessive when we consider them absolutely, that is, as persons and not as things. But our affection for things must always be limited. We have to consider them as simple means at the service of virtue and of personal happiness. Two corollaries follow from this:

1. Civil society can never offend persons nor anything such as life and body which is individually joined to persons. Consequently, society has no right to take innocent life, or to inflict bodily injury against a person's will (at least not without adequate compensation if indeed we are prepared to admit that corporal sufferings are susceptible of being priced as other goods are), even if the entire nation could be saved from extermination by means of such inflictions. The Gospel indicates a tremendous example of such injustice used as a pretext for the death of Christ: `It is expedient ... that one man should die for the people.' This is an impious, deplorable maxim, although common to all pagan nations. The tag, `Salus reipublicae summa lex esto', expresses the same immoral principle, and has as its starting point the radical error whose deformity we wanted to demonstrate, that is, sociality is the principle of all morality. This ferocious principle, which has a thousand disguises and a thousand names, including the title `reasons of State', never ceases to savage humanity. Machiavelli did not invent it; he popularised it.

2. In the case of things rather than persons, there is always some value to reasonable affection which can be discovered by careful calculation of all the circumstances. In doubt, the benefit has to be given to the owner. The possessor of a right must not be deprived of his right by others, nor be subjected to doubtful loss as a result of their actions.

1682. Outside these cases civil society is one jural person equal to others. The fiscal privilege which gives it first place amongst creditors by removing jural equality is simply injustice, although that does not mean that we have to agree with the saying: `Under a good ruler, taxation is the cause of the worst evil.'

1683. 6. We said that the third way in which civil society could injure others' rights of ownership was by impeding possessors in their attempt to defend their rights or seek compensation for them, or by rendering this more difficult than it would be if individual means were used for the same purpose. Civil society can neither suspend nor entirely abolish the natural law, but only assist it to prevail in all those cases where it is powerless to prevail. Hence, even under civil laws, many cases are found in which the parties do justice for themselves. In all these cases, the state of nature subsists (cf. 147-151). Self-defence, mutual and reciprocal defence amongst relatives and friends, compensation or repossession of goods wrongly taken from a person, and other acts of this kind cannot be altogether eliminated under civil laws.(494) In such cases, human beings really are in the state of nature. Public authority must indeed intervene if these acts disturb or threaten tranquillity, produce conflicts or disorder, or exceed their limits. Otherwise, it should even protect and authenticate them.

Civil laws must not determine everything and constrain people of good faith to undergo legal procedures without necessity. Such procedures are always accompanied by inconvenience, postponements, deception and expense.

1684. 7. Civil society can injure others' rights of ownership in its own defence and by inflicting harm greater than necessary upon transgressors. Criminal laws cannot have a single degree of severity greater than that which is necessary to repress criminal activity. The degree of punishment must vary according to times and circumstances. In modern days, for example, it has been greatly moderated.(495)

It is highly probable, however, that in days past great injustice was committed by society through undue attachment to criminal laws which remained unchanged, despite alterations in mores. The rigour which had once been necessary became useless, although it was retained until public resentment, expressed orally, in writing and by facts, opened the eyes of governments and often inculcated fear of public unrest.

How extraordinary, though, that when the time had come for balancing the rigour of the law with less harsh ways of life, neither supporters of ancient severity nor upholders of moderation succeeded in reaching the heart of the matter! Both sides judge according to the pretended principles of absolute justice, although the whole question revolved around relative justice. The liberals condemn the conservatives as unjust, barbarous and cruel; conservatives condemn modern reformers as unjust and weak in their attitude to vice, which they seem to encourage. Both sides would be correct if the reformers, instead of maintaining that ancient severity was unjust, had considered it as inopportune for modern times, and if conservatives praised the justice once proper to law, but no longer appropriate. The only way in which society can avoid committing injustice in establishing the correct degree of severity in punishment is to carry through what must be done in every other field, that is, it must embrace and cultivate knowledge, which it has to accept whatever its source.

1685. 8. Civil society injures others' rights of ownership in another way when, having suffered harm itself, it requires compensation greater than the harm it has undergone. An example of this is found in victorious nations which, having gone to war for what they believe are good reasons, remain dissatisfied with reparation for the offence received from the conquered nation. They think that victory alone provides them with the right to lord it over the vanquished, treat them cruelly and dispose of them as they please.

1686. 9. Society (the supreme authority) not only injures others' rights by its own action, but also through its magistrates, officials and others when it remains silent or even approves the evil they do in its name. One example of this is the flood of human blood that has been shed uselessly in the case of crimen laesae. These abuses depend in great part on the way in which society is constituted. Not all these abuses can be avoided but, granted this, society still has a duty to organise itself so that the least inconvenience results. It can do nothing immediately! Let it do immediately what it can and as it can, and what it knows it can. The moment for carrying out this sacred duty will depend by and large on the degree of knowledge that society has. Ignorance on its part, therefore, is injustice. I repeat: society has to learn and to omit nothing that will continually clarify the way in which it has to carry out such an important obligation.

1687. 10. The obstacles it places to the increase of such cognitions is another way in which society injures the totality of human rights. By impeding the development of the philosophical or merely jural knowledge necessary for illuminating its own rights and those of others, or the manner in which they are to be exercised and sanctioned, society sins mortally on a moral and a political level. This is particularly the case relative to ethical knowledge, when it can sin by placing obstacles to the truth and by opening the way to error. This explains why society has to undertake to solve the following difficult problem: `How is moral truth to obtain the greatest development, and moral error the least?'

1688. 11. Finally, civil society injures others' rights when it places obstacles to the verification of rights and correct decisions in litigation. The principal duty of social government is that of judging cases of contention amongst its members. It is, therefore, obliged to institute laws, tribunals and legal procedure in such a way that justice may be done to all with the greatest speed, the least expense, the least inconvenience and the greatest uprightness. It is not obliged to obtain all this in an instant, although it is obliged not to neglect anything whatsoever that would bring such things about and to embrace loyally any light and any means offered for achieving such a purpose. No one should be able to say with any degree of probability: `I see that some improvement is needed in the administration of justice. But society gags me; it does not want to understand' [App., no. 13].

1689. The title to a right is always constituted by a fact.

However, besides the species of facts constituting titles to rights, there is an infinite number of other facts which do not constitute titles to rights. These facts, despite their multiplicity and durability, can never produce the slightest change in right. Moreover, whenever there is an attempt to change right by means of facts extraneous to the nature of right violation and injury are present.

1690. Force, for example, is a fact foreign to the constitution of right. Someone stronger than I does not acquire any jural ownership of what he takes from me however long the despoliation may last; he will never cancel, nor even weaken my title; I remain the owner of that thing for as long as I want wherever it may be. The moral force of my right is altogether independent of space, time or any kind of external, material power.

1691. As we said, prescription and usucaption have no jural efficacy from a merely temporal point of view, nor from the mere fact of possession. They receive it indirectly from the special conditions to which we are subject in the exercise of reciprocal rights (cf. 1049).

1692. Let us consider just one of these conditions. In its moral essence, right is constituted by a spiritual act of intelligence and will. But right, unless expressed in some exterior sign or productive of action, would undoubtedly lack respect and be powerless to take possession of anything. As we said, an external sign is an integral part of right (cf. 508-520). ;
But we also need some means of knowing the sign itself. This can only be another sign. Two species of signs of right are present, therefore: constitutive and demonstrative. This is how human beings, in their mutual conduct, are conditioned to external signs. But let us apply all this to prescription.;
As we have seen, time does not alter rights in their essence, but it can obscure our knowledge of them. The conditions normally applied to prescription, that is, good faith, continued possession and the nature of the thing which can fall under prescription (cf. 1049), show that prescription is regarded only as a critical circumstance for the verification of rights.(496)

Prescription, therefore, as a simple means of judging the existence of laws, holds the place of a title in written as well as in natural law, but with this single difference: the person in a state of natural law is himself judge of the matter; in the state of civil law, tribunals are established to judge the matter. Note, however, that these two states always co-exist together. As we have said, civil society does not altogether destroy the natural state. Even under civil law, human beings are still to a great extent in a natural state. In civil society itself, therefore, we have to consider prescription as on a par with any other demonstrative sign of rights, that is, in two respects: relative to the person who judges in his own case, and relative to the person who judges the claims of others.

1693. The difference is immense. In fact, the person who judges his own case has nothing hidden from himself, and consequently possesses a favourable circumstance assisting him to arrive at a sound judgment. This is not so when a judge adjudicates in the cases of others and on the basis of dispositions which are not always sincere. Prescription will never be valid therefore for a thief, conscious that he has stolen, however long he remains in tranquil possession of what he has stolen, because he can never hide this circumstance from himself. But a judge will have to decide in the thief's favour if the alleged theft is not proved.

1694. The person who judges his own case is, therefore, in possession of immutable rules according to which he may direct his conduct in similar cases, simply because he has no fear that facts may be altered through falsity on the part of others. But the rules according to which a judge has to arrive at a decision necessarily vary:

1. According to the degree of human malice and deceitfulness.

The judge always finds himself in danger of injuring one or other of the two parties. In the case of prescription, the arguments which form the basis of his judgment, that is, facts from the distant past, cannot be other than probable. The judge's uprightness consists in making his decision in accordance with the greatest possible probability of not doing harm, that is, according to jural certainty. This kind of decision does no injury to anyone because people have to be content with it when other certainty is impossible. If there is a false judgment, this will be the fault of whoever concealed circumstances which could have thrown light on the case. At the same time, not all proofs have the same value, which changes according to malice and deceitfulness in human beings. For instance, it is extremely probable that a truth told on oath in a certain period and in a religious nation would have little force in another period and in an irreligious nation. The judge's decision has to change, therefore, according to the highest probability of avoiding harm, precisely because he has to form his judgment on arguments that change their value with times and circumstances. For the same reason, civil laws that prescribe a rule for judgment have to undergo change, that is, they have to change their assessment of the force of legal proofs according to the understanding and moral quality of the people to whom these proofs are applied, and in relationship to other circumstances.

Nevertheless, civil laws, even when changing with the times, cannot equal the justice of natural uprightness. In the majority of cases they can do no more than establish a basis for jural certainty. Consequently, the law, although able to establish the basis for finding jural certainty in most cases, is subject to error in particular cases and leads to a decision contrary to natural equity. We must now ask if the right of individuals as such is harmed by the civil law in cases of this kind. We have to reflect that this seems a necessary evil dependent upon the generality of law. But if civil society has the right to make general laws, an evil necessarily connected with such a right cannot be imputed to civil society.

Positive legislation will not be able to claim immunity from every fault, however, unless two conditions are verified: 1. that it does not claim civil law as the sole obligatory means to which citizens have to resort when their rights are in conflict. They should be able to decide for themselves according to the natural state in which they are, provided this can be done without disturbing public order; 2. that in particular cases the irregularity or injustice consequent on the generality of the law should be the least possible. Government should do everything possible to improve or reform laws, and reduce necessary evil to the minimum. In this way, everyone will be generously compensated for the few inevitable evils by the greater good promised and produced by the law.

1695. 2. The rules according to which the judge gives his decision have to vary also according to the value of the goods which are put in danger by the decision.

As we said, the judge's decision has to be given with the intention of causing the least possible probability of harm. It follows that this danger will be the minimum possible if, in the case of error, the error itself produces the least possible harm. For instance, let us imagine that the probability of being right is the same for both parties to a dispute. The judge, in passing a wrong decision, may do a great deal of harm to one party by finding in favour of the other. By favouring the other, he may, in the case of error, do little harm to the first party. In these circumstances, he will have to decide for the least harm if he cannot in any way divide it or compensate for it. If, however, the harm can be divided or compensated, this should be done.

1696. There are circumstances in which it is hard to respect the rights of others, and pleasant to violate them. Rights are of a moral nature, and therefore independent of circumstances. This is easy to understand if we simply recall what has been said. Human beings are twofold in themselves: subject and object, feeling and intelligence. As feeling, they act through sensation; as intelligence, through the idea. Sensation ends in itself, without making anything known; human nature is rooted in sensation, through which we are subjects. The idea refers us to something different from ourselves: it supposes an act of intuition, and something intuited; it constitutes human understanding and brings the subject to unconditioned truth.

Human beings as mere subjects would have neither rights nor duties; they would act instinctively. Rights and duties, if they are to exist, require two entities: one with a duty and one towards which this duty is directed. The subject presents itself as only a single, simple thing.

The relationship of the human being as subject with the human being as object constitutes rights and duties. The human being sees himself; as seen, the human being is humanity itself participated by an intelligent individual. Reason prescribes respect towards humanity wherever it is found, wherever reason sees it, whether in other individuals or in the individual whose reason it is; reason judges that others and self are to be respected equally. Each human being sees other human beings through his reason, but he feels neither their pleasures nor their pains; he sees himself, and at the same time he feels his own pleasures and pains. In so far as he sees himself, he is object to himself; in so far as he feels his pleasures and pains, he is subject. Duty, however, can be exercised only towards an object; in this case (where the object humanity is equal in himself and others), the subject has an equal duty towards others and towards himself. The fact that he feels his own pleasures and pains, but not those of others, does not mean that he has an extra duty towards himself, or an extra right, or that his rights are preferable to those of other human beings.

It follows from this teaching that human beings have to act morally, independently of the pleasure and pain they can derive for themselves from their actions. The moral law, coming as it does from the object, has no regard for the subject, and utters its commands in total independence of pleasure and pain.

1697. Hence, the difficulty of virtue. On the one hand, human beings have to act solely in accordance with the object; on the other, in our condition as subjects we are borne towards pleasure independently of consideration of the object. Strife looms before us. Intelligence stands above it, totally disregarding instinctive activity while prescribing reasonable activity. Such is the absolute dominion intelligence wishes to have over instinct; such is the necessary triumph of idea over sensation. Here full liberty, that is, moral strength, the condition of all virtues, finds its home.

The consequence is clear: rights have to be respected in all circumstances whatever pain or pleasure they may cause.

1698. But isn't extreme necessity an exception to this rule?

If it could be proved that another's right existed at this point, it would be better to perish rather than infringe it. The question, therefore, is not concerned with the moral possibility of infringing a right, but with knowledge of its existence. We have seen the limits to external ownership, and how ownership, in order to be right, has to be moderated by the laws of reason. But these laws do not allow us to be so attached to any superabundance in what we own that we can deny it to a dying person. This would be immoral, and destroy right.

1699. On the other hand, the right to life involves a right to provide the necessities of life for oneself when this can be done without risk to the life of another. Sometimes human beings suffer slavery and the sharpest pain without moral resentment. Mental insensitivity in savages and slaves in this regard is a phenomenon that provides obvious proof of their lack of moral resentment at what they suffer. But this is never the case when we are dealing with life itself. When existence is in the balance, human beings throw off their lethargy. Danger to existence excites in them intellectual forces which even appear to be stultified in the midst of intense corporal misery. This shows that we never abandon the jural possession of our own existence. Reason confirms this: we have necessarily to admit that human beings naturally take possession of their own existence with an act of the understanding (cf. 53-58, 537). They have, therefore, an essential, special right to life which no one can injure; and life is that intimate union which forms a single individual, a single person, of body and soul. If, therefore, personship is inviolable, the life of the human being, a complement of personship, is inviolable.(497) There is no case in which one human being could be the cause of another's death without offending the other's right. We must conclude that in cases of extreme necessity no one can, without injury to another, prevent that person from using food which the owner does not need, and that in these straits a person in need can take for himself the food denied him by others.

This argument cannot be applied to other kinds of corporal suffering, however great, but only to the case of danger to life.

1700. Others' rights may not be offended either directly or indirectly, with a positive or a negative act, by use of what is our own or belongs to others, by our own activity or by the consequences of our activity.

1701. Nevertheless, rights of freedom are distinguished from rights of ownership because injury is not the same in both cases. Rights of freedom can be limited in others without injury by means of pre-occupancy (when others' freedom is forestalled by the use of our own) and by the exercise of our right of ownership. For example, the right of passage along the public highway for oneself and one's goods, the right to a necessary stop-over, the right of hospitality provided for exiles, the right to cultivate uncultivated lands, the right to contract marriage, and similar rights to actions and things enumerated by authors, cannot be attributed in an unlimited way to aliens. Civil society has the right to block, restrict and bind these rights to determined conditions, if this proves useful or has common consent, although it cannot be done out of caprice, from hardness of heart or as a result of unfounded suspicion. Moreover, because even here action must be directed in accordance with the just calculations of prudence, it is necessary that civil society change its conduct according to circumstances. When people live simple lives, society has perhaps no right to deny strangers passage along the public highway. But this will not be the case where there is ground for suspicion. The fact that the Hebrews fought their way forward with the sword through the lands of the Idumeans and the Amorites does not prove that every people has the right to pass through the lands of others. At most, it shows that such a right needed to be recognised at that time, and that the Idumeans and the Amorites had no reason to fear a people who gave proof of their uprightness in the balanced treaties they concluded. The same can be said about all other rights to actions and things: provided that a person has a just motive for judging that the limit he places to others' freedom is of assistance to himself, and provided he does this by using his own ownership, he can place such a limit. And this is the case whether the good he expects is direct or indirect, immediate or a remote consequence of the limitation he has posited.

1702. On the contrary, the exercise of ownership by others cannot be limited without fault. It cannot be limited:

1. Directly or indirectly. If by speaking we willingly gave occasion for a theft, we would already be accomplices to the crime.;
2. By our own activity or its consequences. If in defending our land from flooding, we diverted a river to another's land, we would injure his right of ownership.;
3. Positively or negatively. If we permit our flock to pasture in another's wood, we are the cause of the harm because we did not prevent it.

1703. Peace is maintained by this mutual respect for others' rights, proper to reasonable beings. It also opens the way to mutual agreements. The owners of land along the banks of a river liable to flood could not, according to the Right of nature, undertake separate repairs if this meant harming one another, but they could unite for the sake of common protection with proportionate expenditure. And because leaving the river without adequate provision would mean that each would suffer considerable harm, they all have an obligation to unite and agree about what is best in the common interest. Anyone refusing to form part of such an agreement would harm the rights of the others who could then carry on without him. This is a new case in which the right of others cannot be injured even negatively, that is, by not acting.(498)

(482) I say `methodologically' because, as I have already noted, only individuals are in fact the subjects of right.

(483) Cf. SP, bk. 1, c. 2.

(484) `Expelling foreigners from Eratostene is a barbarian act' (Strabo, bk. 17) `and the Spartans are no better in this matter' (Hugo Grot., De J. et P., bk. 1, c. 2, §16). The reasons for the harshness shown by ancient peoples towards foreigners were principally: 1. the lack of universal love (love taught only by the Gospel) which left the field open only to particular love for relatives, etc.; 2. the natural love of power and dominion over others; 3. the fear of foreigners in whom people saw the same passions as they themselves experienced. As a result, their right of defence was also excessive on two counts: a) in judging others as malicious and offenders without experimental proof and solely on the basis of entrenched opinion about the universal corruption of mankind; b) in neglecting to seek the minimum harm to others in the exercise of self-defence - the moderating power of universal love was indeed lacking.

(485) Any physical evil becomes moral evil simply 1. when wrongly inflicted on a person (because a moral evil is always contrary to the dignity of a person or intelligent nature); 2. when inflicted by a person or intelligent nature. It is not always the nature of evil which renders it moral, but sometimes only the relationship between the person who does it and the person who experiences it.

(486) The question of political freedom is independent of that of the form of government. `Democracy and aristocracy are not free States of their own nature. Political freedom is found in moderate governments alone. But it is not always present even in moderate governments. It exists only when power is not abused' (Montesquieu, bk. 11, c. 4).

(487) Government must direct everything it does to the good of human beings as individual persons, but must not use them for this end except as members of a society. This is the political problem, and it is not at all easy to solve.

(488) SP, bk. 1, c. 2, §18-20.

(489) Cf. SP, bk. 2.

(490) `The sacred laws of the XII tables forbid the establishment of laws for private individuals. This would be privilege. No one tolerates this. There is nothing crueller, more harmful or more intolerable for this city' (Cicero, Pro domo, c. 17. Cf. also De Legib., bk. 3, c. 19).

(491) Hobbes' reply, when Lord Clarendon asked him why he had written such a bad book as Leviathan, is well known: `The truth is, I am aching to return to England.'

(492) Cf. ER, 252-255.

(493) Cf. ER, 93-222.

(494) For example, English laws permit the destruction of a wall erected in such a way that light is excluded from a house. According to the phrase of one celebrated author, civil society is instituted to change `the ways of fact' into the `ways of right' for humanity. Preventing conflict and private wars at their source is the first object that falls within the responsibility of civil society.

(495) Aristotle noted the progress from severe to milder laws in the development of Greek civilisation, as we notice it in Christian development. When he compared the Spartan legislation of Lycurgus with the more ancient legislation drawn up for Crete by Minos, he said `by and large, ancient ways are cruder than modern ways' (Polit., 2: 8).

(496) Another effect of time is to bring about forgetfulness of offences, which in turn leads to the cessation or diminution of moral resentment. It would seem, therefore, that according to the indication given by nature an old offence ought not to be punished in the same way as a recent offence.

(497) Personship, indicated in Scripture by the noble phrase `made in the image of God', is offered as proof of the gravity of the crime of homicide, and of this crime only. It is one of the Noachian precepts, expressed as follows: `Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image' (Gen 9: [6]).

(498) The Austrian civil code itself recognises in general the owner's right not to make use of something he owns and to allow it to perish, but limits this right when dealing with particular matters if harm would result to others' ownership from such behaviour. §858 includes such limitation of the principle admitted by the code: `Normally the exclusive owner is not obliged to repair his broken wall or fence. He has a duty to keep it in good repair only if his neighbour fears harm as a result of the breach.' Care should be taken, therefore, to interpret rightly the rule: `No one causes harm by using his own right.'

Next Chapter

Home