Universal Social Right
Chapter 6
The three principal parts of universal social right
145. These few words about the general origins of societies are
sufficient. But what are the laws governing these societies, and what Right is
common to them?
If the exposition of the laws and the Right is to be really useful to mankind,
we must keep in mind that a human aggregation very rarely subsists in reality
as a pure society without any heterogeneous elements. We must therefore turn
our attention to these elements, examine them jurally and note the titles of
right they constitute. The principal non-social element is the
seigniorial.
146. In fact, the social bond is often mixed with the seigniorial bond. Thus, in societies as they really are, dominion (sometimes absolute, sometimes modified to varying degrees) is in most cases mixed with freedom.
147. We must therefore place some consideration of seigniorial Right before that of truly social Right if we wish to present the philosophy of social Right in such a way that it can be easily applied to titles of fact and result in pure Right from which we can without great difficulty derive real Right.(26)
148. A further reason why social Right cannot be entirely isolated from seigniorial Right lies in the following questions which spontaneously present themselves: `Can bond-servants, not considered abstractly as bond-servants but as they are in reality, that is, human bond-servants, form societies among themselves, and if so, what kind of societies?'; and, `Is the master obliged to govern them in the way societies are governed?'; or, `Can or must the master, not considered abstractly as master but as human master, have some society with them?' These and similar questions concern the very intimate relationships between the seigniorial and the social parties.
149. Seigniorial Right therefore must be discussed before social Right. In fact it is not absurd to consider the former as the first part of the latter, provided the essential relationships between the two Rights are also included in the discussion. The same discussion can pertain equally to both Rights.
150. Furthermore, we must keep in mind what has already been said: the administration of a society, that is, its government, can be entrusted to a non-member. In this case the government is external, not internal, to the society.(27) The administrator or governor in free societies is anyone authorised by the members, and while he is not their master, he is certainly not their servant; his state is that of mandatary or procurator. All this is included in the notion of society in general, and is a principle acknowledged by civil legislations.(28)
However, whenever anyone has been charged with the administration under certain agreements and conditions, these form the law which determines the relationships between the administration and the members. Thus there are rights inherent to any kind of administration whatsoever. Some rights emanate from the particular nature of the society and from the particular form of administration; others adhere to the members; there are also mutual duties. All these rights and duties determine the complex jural relationship between the government of the society and the society itself. The well-ordered assembling and distribution of the rights constitutes governmental Right, which can be considered as another part of social Right.
151. Finally, the rights and jural duties mutually present in the members serve as matter for the last part of social Right. This could be called social Right in the strict sense, but I think it is better called communal Right, because it deals with the right common to all members. In civil societies this Right is called `civil', a word that comes from `citizen' (civis), the name proper to members of these commonalities.
152. Thus, the three parts of social Right are: seigniorial Right, governmental or political Right and communal Right. These three parts must be found equally in universal-social Right and in the Right of any particular society whatsoever. However, if a particular society were entirely free, seigniorial Right would cease for it.
153. I do not want to determine the order of these three parts. I leave this to the various points of view of the authors, whose different ways of dealing with their subjects may require a different distribution. Some may prefer to treat all three parts together. Each method seems to have its advantages. I myself will rigorously keep to a uniform distribution of the material in dealing with the Right of particular societies.(29)
Notes
(26) Seigniorial Right involves the possible jural relationships between a society and a master to whom the society is more or less subject.
(27) In municipalities or free cities government was often entrusted to foreigners in preference to citizens. Cibrario writes, `The suspicion that one day or other, after the Barbarossas, some great citizen would establish a form of tyranny induced municipalities to substitute a foreigner for the consuls; this man, with the title of podestà, would govern them and be accountable. A change of this kind was made at Genoa in 1190 and cost the life of one of the former consuls. Florence had its first podestà in 1207. He was accompanied by a lieutenant (miles), who was responsible for maintaining good order and seeing that sentences were carried out, and by two or four judges who were also foreigners, and by a court befitting his rank. He remained in office only a year, sometimes six months, and before departing was subjected to a very strict check' (Della economia politica del medio evo, bk. 1, c. 6).
(28) The Austrian Code grants it in §1190: `The member, or members, entrusted with the administration of affairs, is considered as a procurator,' and in §837, `The administrator of a common good is regarded as a mandatary.'
(29) A fourth part of social Right must be added if we want to treat separately the jural relationships of society with persons (individuals or other societies) outside society. Authors usually call this part external-social Right. But I have already explained why I omitted it, except for the few matters I inserted here and there in individual Right, and some others which will be automatically included in the present treatise on social Right.