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Universal Social Right

Chapter 8

Political or administrative right as the second part of universal-social right

194. We have seen that societies can be subject and free. Our question can therefore be divided into two:
1. Who has the right to govern a society subject to a master?
2. Who has the right to govern a free society?
We begin with the first.

195. We said that society can depend on a master in two ways: indirectly, if the individuals composing the society are subject to a master, or directly, if the society is subject as a collective body. Let us look at both cases.

196. A. Servitude de jure (the sole case we are discussing) is simply an obligatory prestation of action. The only right the master can have is to the action of the bond-servant. This action forms the object of his seigniory within defined limits.(40)

A bond-servant, granted whatever degree of action he owes his master (servitude has various degrees), can form any society he wants, as we have said. The master cannot prevent him although he may use the right of guarantee within the limits assigned by rational Right (cf. RI, 1820-1900), and may under certain circumstances prohibit the bond-servant only by virtue of this right. These societies formed by a bond-servant in virtue of his own personal right do not depend on the master except for any guarantee he could invoke. Anything more is unjust oppression.

197. A bond-servant who cannot form a society without diminishing, damaging or endangering the prestation he owes his master is forbidden to form the society unless he compensates the harm that his master suffers and reasonably thinks he suffers. But when the harm has been fully compensated, by the right of jural claim, the bond-servant can associate, if it really helps him.

198. If however he has no means of compensating and, as it were, of buying the right of association he desires, he cannot associate without the master's permission. The master can impose reasonable conditions, either to obtain compensation equivalent to his loss (in which case the conditions cannot, in his honest judgment, be stricter than the conditions necessary for compensation), or to guarantee that he suffers no further harm.

199. The master certainly has the right of granting or denying permission to his bond-servant, or of imposing certain conditions. One of the conditions, derived from this right, is that he can impose on the society in question rules of administration or even a constitution, or reserve to himself the total government of the society, or have it administered by a trustworthy person.

200. All these observations allow us to understand better how much the right of government differs from the right of seigniory: one can be present without the other, and the right of government can be derived from the right of seigniory.

201. The difference between them is not one of degree but of kind. They do not have to be acknowledged as subsistent unless the reality of their title has been individually demonstrated. A demonstration of the reality of the title of seigniory is not sufficient to infer without further demonstration the subsistence of the right of government.

202. We still have to see if a master can obligate an association of his bond-servants. He can do this for his own benefit and without harm to the bond-servants, or for the benefit of the bond-servants themselves.

203. In both cases the only society he can impose on his bond-servants is that which consists in contributing and regulating either the prestations they owe him or what he gives them without obligation (or with some obligation relative to what is given, but not to the way it is used, for example, maintenance and subsistence in general). In both instances he also has the right to govern the society he has formed or imposed on the bond-servants.

204. Furthermore, the master can establish societies between himself and the bond-servants, if these agree. He can also lay down conditions, with their approval and consent.

205. Finally, there is, as we said, a necessary society of master and bond-servants, the Catholic Church. In this society, master and bond-servants are perfectly equal; the title of seigniory does not give rise to precedence of any kind, nor to privilege, authority or legitimate power.

206. B. We now come to the second case. Who has the right to govern the society, that is, the collective body, which depends on a master? Bearing in mind that servitude consists in an obligatory prestation of work, we must distinguish the varying degree and the determination or indetermination of the obligatory prestation as object of the servitude.

If the prestation is determined, a society that fulfils the prestation satisfies all its duties towards the master. Hence, if it can carry out its prestation without needing to make its government depend on the master, it remains entirely free relative to the manner of government.

207. Nevertheless we must ask whether the master can exercise the right of guarantee in respect of this kind of society.

First of all, we note that the right cannot be exercised without verification of the circumstances discussed earlier (cf. RI). The right cannot be a burden or disturbance to the party over whom it is exercised unless this party is blameworthy or compensated in some way for the disturbance. Granted the condition of full compensation, the party over whom the right is exercised must submit to some disturbance so that the party exercising the right may be guaranteed through his right of jural claim.

208. Secondly, even when the master can exercise his right of guarantee and upset the other party, he must do so with the least possible disturbance and trouble. In order to have the guarantee due to him by right, the master may have to share in the government of the society or reserve it partly or totally to himself. In this case alone would the society lack the right to govern itself, and the right pass to the master.

209. If the prestation owed by the society is indeterminate, the degree of indetermination has to be precisely known.

210. When the indetermination is greatest, the dependence is greatest. This would be the case if the society were obliged to give the master everything it earned or gained, that is, if the society had been formed for the master's full benefit. Without any limiting conventions, he would clearly have full right to govern it in the way he thought best, and for his own personal fruition.

211. If, on the other hand, the indetermination of the prestation is not total but specific or generic, the dependence and servitude is less. For example, the society could be obliged to defend the master's possessions against an invader, or render service to him and his court whenever he came to visit, or fulfil similar prestations. Such prestations would be determined by their end, not mathematically, even though the means necessary for obtaining the end fluctuate. What I said about determined prestations would apply here.

212. Summing up these distinctions, we can say that the titles on which a master can found his right to govern a society obligated to him for some service are:
1. The title of total seigniory over the society; because the society's only purpose of existence is the master's good, it must fulfil all possible prestations due to him (oppressive, obligatory, burdensome society).
2. The title of limited seigniory, whose object cannot be fulfilled without the master's participation in the government of the society.
3. The title of guarantee, when applicable as a function of the right of seigniory.
4. The title of jural claim as a function of the right of guarantee.

213. I will first speak about the right of governing a free society before the society has made any convention relative to such a right, and then about the same right as the possible object of special conventions.

214. All laws acknowledge that the right to govern free societies of internal origin, that is, formed by the will of the associated individuals, pertains to the members themselves. The Austrian code states: `The possession and administration of what is common to all pertains to all members.'(41)

215. But if the right to govern pertains to the associates, is it exercised by each individually, by a majority, or by all taken collectively? To answer this question, we need to divide the right into three parts: the part pertaining to each member, the part pertaining to a majority of members, and the part pertaining to all taken collectively.

216. Each member is owner of his share, except for the limits placed on the exercise of his ownership by the nature of the society itself.(42) Each is also owner of the total portion of benefits which comes to him from the society; the benefits themselves are the result of his input.

217. a) Because of these basic rights each member has the right of inspection, that is, of knowing how the administration of the social capital is proceeding and whether all the other members are fulfilling their duties.

218. b) If he discovers that the conservation and administration of the social capital is being carried out in a way prejudicial to the society, or simply if he knows of some improvement, he has the right to claim against the harm done by wrong administration, or to propose the improvement he has in mind.

219. c) The harm he suffers, or the proposed improvement, must be verified. After it has been verified, all the members must approve the proposal; if they reject it, the member would have the right to use force to make them redress the damage or accept the improvement.

220. First, however, we must define the kind of harm and improvement we are discussing. If the member who denounces harm caused by administration means by that harm done to him, and shows that some modification by the administration could avoid the harm without prejudice in any way to the other members, all the members would be obliged to act to remove the harm. Here, the injured member exercises the right of jural claim which extends both to the harm he suffers as a member and to the harm he suffers to his other rights not placed in communion.

221. If the particular harm to be avoided concerns the member's rights possessed in social communion, and the harm cannot be avoided without diminution of the other members' benefits (I am speaking only of benefits to which they have no right), all the members are obliged to grant the member's proposal and renounce the additional social benefits which do not jurally pertain to them.

222. The same must be said if the harm concerns not only the member making a claim but other members, or all the members. If the harm is verified, the claim must be granted.

223. If the harm concerns other members but not the member making a claim, they are free to renounce their right or uphold it.

224. In a case where the harm denounced by the individual member is doubtful, he can claim only an equable, peaceful settlement but not that the others must absolutely side with him.

225. The settlement should be concluded in the following way:
The affair must first be discussed with all those involved to see whether the supposed harm can be verified or not. If the harm is found to be false, the members are no longer bound to agree to the claim; on the contrary, they can in an extreme case force the claimant to submit to reason.

226. Where all agree that the harm is doubtful, they must work to reach an equable transaction.

227. Finally, if no agreed transaction can be reached, they must all have recourse to the decision of judges who are chosen by them from among the most honest and suitable people for the case.

228. d) Consequently, none of the other members can introduce anything in the social capital that may harm the portion of a single member, without his consent.(43)

229. e) If however a member proposes an improvement that increases both his and the common good, the society is obliged to accept it, granted that the improvement is seen as certainly beneficial.(44) This right, which I call right of proposal, embraces all that can be deliberated.

230. f) If what is placed in communion are actions of the members, or of a single member, all the members are obliged and have the right to posit the actions and thus contribute to the administration or social government.

231. g) A member who sees other members failing in their obligations has the right to complain about their failure. He must use the most peaceful and efficacious means to spur them on to fulfil their duties, uniting himself with them for this purpose. Finally he can employ force to constrain them to fulfil what is undoubtedly their social duty and cannot be omitted without harm to the society or simply to the claimant himself. This right is acknowledged by civil legislations; the Albertine code lays down, for example, `that each member has the right to oblige his fellow members to share with him the costs necessary for the preservation of what belongs to the society.'(45) This is a particular case of the general right I have presented. - In doubt, the stated procedure must be followed.

232. h) The member can exert an indirect influence on the social administration whenever his influence arises from his rights of defence, precaution, guarantee, recompense, or jural claim.

233. i) Each member, even without consulting the others, can administer the society on the following conditions:
1. He must not disturb or harm the society by disrupting administration already in force.
2. He must be sure that his action is beneficial to the society, or has already been decided upon, or is so necessary that its omission would cause harm. If he is unable to consult his fellow members, and the action is so urgent that it could not be delayed without harm, any member can do it, as long as they can show they acted prudently and were not responsible for any consequent harm.

234. Finally, every member can perform administrative actions even if these conditions are not verified. However, because he is disposing of what belongs to others, he then becomes responsible to the society for what happens later. If his imprudence results in an unfortunate outcome he must compensate those harmed, particularly if his action lacked good faith.(46)

235. j) `Every member can use what belongs to the society, provided he uses these things according to the purpose determined by use. He must not use them contrary to the good of the society, or in a way that impedes his fellow members' use of them in accordance with their right.'(47)

236. k) Finally, every member has the right to claim that his fellow members, even when they all agree, do not dispose of the thing posited in communion against the social end and conventions.

237. l) This influence of an individual member of a society on the administration or government of the society gives rise to the right of veto. The right belongs to each member and effects the area of administration or government that pertains to the whole community. Another source of the right is, generally speaking, `the right to watch over the preservation and the more useful exercise of the individual's rights, inside or outside the communion'. We will speak about this later.

238. All these rights are strictly individual or consequences of individual rights, and the individual exercises this degree of governmental power solely as an exercise of his individual right.

239. Nevertheless these individual rights, whose exercise is occasioned by the fact of society, must be distinguished from individual rights which neither presuppose society nor are derived from it. We call these rights extrasocial, that is, individual rights in the presence of and relative to the fact of society.

240. It is universally acknowledged that individual right continues to exist in the state of civil society. Anyone claiming that individual right was absorbed by social right (civil or any other kind) would be concocting a formula for the most tyrannical of possible societies (cf. RI, 1652-1654).

241. The rights I have indicated of an individual over the administration and government of the society to which the individual belongs arise from individual right. The rights which concern the term of the society, the division of social capital or its fruits (all recognised by civil codes), can be reduced to the same kind of rights as those which the individual can exercise on the society.

242. For example:
a) In societies of indeterminate duration an individual member can withdraw from the society, provided no harm is caused to the others, and he withdraws in good faith.(48)
b) An individual member can require, contrary to all the others, that the division of the common goods is carried out in a way that safeguards his right, provided this way is better suited to all the other members and is reasonable [App., no. 2].

243. Having seen the kind and part of governmental power which an individual member can exercise over a society, let us now examine the part pertaining to the majority of the members, that is, to the majority of votes.
Clearly votes must be calculated not according to real persons but according to social abstract persons; in other words, in proportion to the input of each member. Even though this maxim is neglected in practice by certain societies, it is no less a principle of jural reason, and acknowledged as such by the most reputable civil codes.(49)

244. The input is everything that each member contributes of his own in communion because of an assumed obligation to do so, or even without obligation (provided there is no intention of donating), and with the expressed or presumed consent of the other members.

245. Must personal prestations, that is, actions in favour of the society, be calculated in this input?
We must distinguish. All members are equally obliged not to harm the society and to help it whenever occasion offers. If the actions done by a member for the society are amongst those connected with this indeterminate, common obligation, they are not calculated precisely because they are a common obligation(50) and do not alter the calculation of the votes which could pertain to each member.

246. But if the prestation of work is formally agreed with one or more members and not common to all, it must be equably evaluated and its value considered either as the input of the member, or as part of his input if in addition to the prestation he bestows other things of value.

247. Some codes stipulate that when a person puts only his own labour in communion, his share in the profits or losses must be equated with the share of the person contributing the smallest portion to the society.(51)
It is not difficult to see that this kind of determination contains much that is arbitrary and false; the value of a person's labour is made to depend on the value of another person's varying contribution, although accidental variation of this kind does not evidently make another's labour less or more valuable.

248. Hence jural reason gives rise much more easily to the relevant law contained in the Austrian civil code:
If one or more members have contributed work only, or work in addition to the quota of capital, but nothing has been agreed or can be agreed among them, a judge will determine the necessary portion of payment for the work, keeping in mind the importance of the business, the labour expended and the benefit derived.(52)

249. However, some may doubt whether a person who contributes only his own labour in communion can have a deliberative vote. They argue as follows. A person who contributes only his own labour can have no share in the capital when it is divided at the dissolution of the society. Because he contributed nothing, only a share of the profits is due to him. If he has no claim on the capital (as all legislators agree), how can he be given the right to vote?

250. I deny he has no capital; his labour is his capital. If, at the dissolution of the society, he does not receive back a share of the social capital, it is simply because he receives back his labour, which is his capital and remains free and disposable for his own use. Hence, his labour must without doubt be equably valued, and the value reckoned as his substantial input. This necessarily gives him the right to vote.

251. However, it can happen that the value of a member's labour has been calculated and agreed as capital from the beginning of the society, or even later with everybody's consent. The Austrian civil code recognises this case.(53)

252. But in my opinion an important observation, apparently dictated by jural reason, has been omitted. If labour is valued as part of the common capital in such a way that a member contributing labour receives a share when the capital is divided, the labour must be valued less than in the case where a member receives no share in the division. The reason is clear. A particular labour can have only a single value. If the person contributing the labour is paid partly by receiving a right to a share of the capital (thus reducing the capital contributed by the others), he must receive proportionately less money or profit. The value of his labour, and his right to vote, will be less.

253. This way of calculating a member's labour would in certain cases be more equable than the first. If a society sustains only a loss of profits, for example, the person contributing the labour shares in the loss like all the others. But if the loss is part of the capital itself (as in the first way of calculating the capital), the person contributing the labour loses nothing of the capital;(54) his labour remains entirely in his favour. In the second way, however, he effectively loses his share of the capital, and according to equity becomes equal in everything to the others.

254. Hence people simply drawing salaries from the society have no claim to vote. They are not members of the society, but its ordinary employees or servants.

255. Because the right to vote belongs properly to the shareholder, he can dispose of it as he wishes, except for social duties.

256. Consequently, he can communicate his vote to the society either per se or by proxy.

257. This right of proxy has a general utility because the right to move a vote and discuss things held in common with the other members is joined to the right to vote. It allows chosen, competent people to be substituted for voters who are not always competent. In this way, proxies have a whole field open to them for helping the society, the mandatary and themselves.

258. This right of proxy can be taken away or limited by social conventions, provided the votes for the conventions are unanimous.

259. It seems that a majority vote is universally considered the sole means for deciding social matters. That a nation should think in this way must be attributed to the low level of development of the faculty of abstraction, which prevents the mind from splitting concepts sufficiently. Consequently, the mind fails to find the remedies and expedients for avoiding the difficulties of means which, when first presented to the mind, are too complex and badly defined.

260. Such insufficient development of the faculty of abstraction, which restricted the intelligence of pagan nations, is the logical source of the many imperfections that infected their laws and public order.

261. Furthermore, force prevailed over right among pagan nations. It was often the majority, and always greater power and influence, that dictated the law; weakness had to accept it.

262. Another error deeply engrained in past times is the supposition that a majority vote must always be more in keeping with everybody's rights.

263. The falsity of the principle becomes clear when we consider that all rights cannot be represented by a majority vote. A majority, by its nature, represents only the greater part of the votes, not all. The nature of right however is such that it must be fully respected in all members individually, not simply in the majority; ninety-nine against one would be no more just than one against ninety-nine. Respect for a right does not depend on the number of persons who possess it or defend it, but rather requires equal respect in any subject whomsoever (cf. RI, 1647-1660).

264. Why therefore do we prefer a number of votes to the reason behind them, or suppose that a majority vote is more just and more in accord with right than a minority? Such a constant opinion cannot be entirely wrong. Let us see what truth it contains.

Suppose that each person with a right to vote has the same kind of interest and, because of this interest, wants the decision most favourable to it. Clearly, the voters have no reason to oppose and cause harm to each other. All have the same equal interest, and all want to establish the best means for attaining the common end. In this situation, no votes will be cast with the intention of harming a section of the members; this could not be done without simultaneous harm to the voters themselves. We can truly presuppose that no member and no section commits injustice against another member or section in the decision. Nevertheless opinions about the decision can vary; experience shows that human minds very rarely proceed in total agreement. Different views and ideas, different insights, accompanied by experience, upright judgment and balanced criteria, alone explain this. We can reasonably suppose therefore that the decision approved by the greatest number of judgments of those with the same interest is the best.

It is the interest that refines the judgment; the member with the greatest interest in the success of the matter will undoubtedly take the greatest care to find suitable means. Thus, those who have placed most in communion will in all probability cast their vote wisely.
But this explanation is not sufficient in itself to justify the principle that votes must be counted in proportion to the input of each member. According to the principle of greatest probability, the procedure will give a better result than any other, provided that the right to vote is also considered to guarantee a result good for the society. This guarantee is annexed to every right as its function (cf. RI, 1640). Clearly then, the person who has more extensive ownership has more right of guarantee; the one who has contributed a larger portion to a common fund must have more influence in the administration, and therefore in voting rights, than those who have contributed a smaller portion.

265. When we know the principle justifying a majority decision, we can apply the knowledge to see what can be decided by a majority, that is, to see whether the principle is applicable or not.

266. We have therefore the following general conclusion or principle: `Majority voting conforms to equity and rational Right if all the voters are equally interested in a decision, and need only decide how best to achieve it.'

267. Hence an investigation must be made to see if opposing interests in the society could result in a decision which harms some members but helps others, or helps some considerably more than others. In this case the benefit is not equably distributed. Whenever this opposition of interests is noted, a majority decision cannot be just, according to Right and equity - a unanimous decision must be sought, or the relevant remedies taken when unanimity is not attainable. We will speak about this later.

268. The two following, very important consequences result from this principle:
1. In every kind of society certain matters require a decision of equal interest to all the members. It is in the members' interest to make the decision in a particular way relative to the nature of the matters, but free from detailed, accidental considerations, which cannot be calculated. The perspicacity of the legislator in these societies must consist in accurately separating these cases of common interest from all others, and allowing a majority decision for them alone.
2. Where societies produce fewer cases of opposition between the members' interests, a greater number of matters can be decided by majority. The perspicacity of the legislator consists in examining the different nature of the societies. On seeing that he cannot lay down a general programme applicable on this point to all the societies, he must accurately classify which matters are to be decided by the majority in the particular society for which he is called to legislate.

269. In every society the things that concern the whole society and in which the members have an equal interest are:

A) The preservation of the society's things or documents. All deliberations concerning this object are to be decided by majority vote.(55)

B) The simple administration of the real goods possessed in communion by the society. Deliberations concerning the choice of an administrator of these goods,(56) or of other subordinate officials, or the manner of their election, and every deliberation about the most beneficial way for the administration to act, are to be decided by majority vote.

C) The choice of those responsible for dividing the profits or for winding up the society - everyone is equally interested that such people are just and intelligent. Consequently the choice is made by a majority, except for any rights that individuals could have against the actual way things have been divided, which must be validated before a judge.(57)

D) In doubt whether a matter can be decided by majority vote, the doubt itself must be deliberated, and if all the members are unanimous, the matter must be decided by majority.

270. Societies without any interest perfectly common to all their members would cease to be societies.
But this interest, which may be more or less general, can have special interests subordinate to it that are common to certain groups of members or to certain individuals but not to others. As I have said, this is the case whenever the interest forming the common end of the society is general; special or particular means must be determined in order to realise it. Although these special or particular means serve the general end, they can conflict with the interests of different groups of members or of determined individuals, who now have a stimulus in their own interest. When casting their vote, they are moved by this stimulus to determine what favours their class or party or themselves individually, rather than what helps the whole community equally. Whenever these conflicts of interests are verified, the majority vote cannot be the method used for reaching the most just and equable decision.

271. We see therefore that a society which includes many genera and species can be so general and extensive that it has to take decisions which cannot allow the majority vote to be a decisive authority without appeal.
On the other hand, when a society has a small number of interests, the need to replace a majority decision by a unanimous decision, or if this fails, to resort to certain remedies, is less frequent.

272. In the following societies a majority vote can decide everything except innovations which would change the constitution, treaties and the social end:

A) Societies where a communion of real goods is established to be enjoyed by all; nothing more is needed than the administration of the common capital and the enjoyment of its fruits. In these societies, all the members have the same kind of interest.

B) Business societies, when the business is of one kind. It is clear that if many different kinds of businessmen formed a society, the result would be different, opposed interests; either the administrators could protect and favour one kind of goods more than another, or one kind could be harmful to another because of disproportionate support.

C) The same applies to a society for industry or farming. - If only one branch of industry or of farming is promoted, the shareholders have the same, sole interest, and the majority vote is valid. If the society embraces many branches of industry or farming, the interests vary in the measure that the shareholders composing the society are dedicated to one branch more than another.

D) When the society involves all three (business, industry and farming), opposed interests multiply even more. In this situation, according to the dictate of rational Right, a majority decision can be used less often, because the danger of sacrificing the interests of the minority to those of the majority is more frequent.

E) In societies whose sole purpose is profit, there can be very many different, opposed interests, as we have said. This case is found more in a society which, besides having material interests, has many other objects in view and whose members are divided into classes seeking very disparate benefits.

F) The society with the greatest number of disparate interests is undoubtedly civil society. - Consequently, a majority decision can be less used than in all other societies. Moreover, it is very difficult to give this kind of society an organisation entirely in conformity with rational Right.(58)

273. The reader must not deduce from this that civil societies which do not have, or have never had a perfect constitution, are unjust. Such a hasty conclusion is entirely absent from our thoughts.

274. Injustice does not exist without moral resentment, and many of these societies exist without resentment. Those managing the affairs of these societies have sometimes taken over an empty post and, by exercising a right proper to them, have contributed to the public benefit. Moreover, people cannot be required to act according to a justice whose ultimate consequences they do not know; they can be required to act only according to the dictates they know to be just and are universally acknowledged as just (provided such acknowledgement does not result from evil error but depends on the ignorance found in humanity through its own imperfect development). In short, there is a subjective justice not only for the individual but for nations and the whole of humanity. When this justice is observed, everything done is just, even if it is unjust in other circumstances and in times of greater light, or when considered in itself, that is, in abstract theory [App., no. 3].

275. In the above cases the majority vote is the most equable means of deciding a matter because it is considered as expressing the prevalent will of the members. But it does this only approximately.

276. Matters to be decided vary in their gravity and delicacy. We need to know the degree of approximation of the members' prevalent will so that we can ignore without harm to equity whatever may be necessary for an exact calculation.

277. To achieve this, the votes have to be calculated more accurately, a fact which is generally ignored and has been universally neglected with consequent problems.
For example, a society needs to elect a head and correctly uses an absolute majority as the means. People rightly think that the person elected will be helped and supported in his administration (a necessary condition for the good management of the administration), and that he will easily overcome any opposition which may come from a minority. The fact, however, often shows the opposite: all forecasts fail, and the person elected by a majority is defeated by a force greater than that which supports him. Very often we see the minority, from whom revolutions nearly always come, unexpectedly prevail in civil conflict.

278. The only possible explanation for such an unexpected phenomenon is that the prevalent force of the wills results from both their number and their individual degree of force. Because the ballot box does not take account of the degree of force of each will, it is incapable of representing the voters' overall, truly prevalent will.

279. How can this difficulty be avoided, and the number of wills together with their degree of force be included in the voting? This can be done with a degree of approximation, depending on need, by expressing each vote with a fixed number of favourable or contrary points, and taking the total. For example:

280. When the head of a society is to be elected, each voter nominates five candidates instead of one, in order of preference. These five have already been determined by scrutinies or other means, which placed them ahead of the others. To simplify our calculation and make my thought clearer, I will restrict the number of voters to five; those with a passive vote will be indicated by the first five letters of the alphabet. Let the result of the scrutiny be:

If the voters had nominated one person only, `A' would have had the majority, and this absolute majority would have made him head of the society. But the result does not in any way represent the true will of the voters, that is, their overall, prevalent will. Although `A' had three voters in his favour, two excluded him by four places, that is, they disliked him with four degrees of aversion, so to speak. In the first place they put `B', for whom the first three voters have only one degree of aversion, which means these voters would be quite happy to have `B' as head if they could not have `A'. The voters' truly prevalent will, therefore, cannot be known unless the degree of preference is taken into account, according to the following calculation:

We see that the overall, prevalent will of the voters does not favour `A', although he has received the majority for first place; it favours `B', who is preferred to `A' by five points.

281. If we want to express the force of the opposition that the government of the elected person may encounter, we can do so with the number of points against him, giving us the following calculation:

Thus, the government of `A' has 8/20 of the social force against it, that is, almost half, whereas the government of `B' has only 3/20 against it. `A' in fact is in no better condition than `C', who has not received a single vote in his favour for first place.

282. The same considerations must be applied to the choice between the different parties imaginable in any matter whatsoever. If we suppose there are five possible parties, called by the first letters, we easily see that the choice of `A' does not mean we have chosen the party that the members really want.

283. Similar mistakes are present when the vote concerns a proposal that is too complex and contains different elements: some voters consider one element; others, another.

284. An example is found in criminal judgments. The greatest jurists are sometimes gravely mistaken in these matters. Samuel Cocceji, for example, made a grave mistake, in my opinion, in his reply to the following case:
Of five judges, two absolve the accused, three condemn him. One of the three condemns him to 15 units of punishment, another to 10, and the last to 5. - What will be the prisoner's sentence? Samuel Cocceji argues as follows: the accused must be condemned because the judges who condemn are more than those who absolve; his condemnation must be for 10 units because this is the average of the punishments.(59)

285. This judgment is very unjust. The decisions of the two absolving judges are allowed no part in reducing the amount of punishment. Their vote, although certainly calculated in the question: `Is the accused to be absolved or condemned?', is totally excluded from the question: `How much punishment must he receive?' We cannot claim that these two very different questions can be settled by one scrutiny only. If two of the judges had not absolved, and the other three had condemned to 15, 10 and 5 units, the average punishment would be the same, 10. But this is absurd: the accused must receive some benefit from being absolved by two judges rather than by none. The scrutiny, therefore, if it is to be done in accordance with justice, must be carried out as follows.

286. Although taking the average of the judges' sentences is certainly a just principle, the average must be taken from all five judges, not simply the three who condemn. If the votes of the two absolving judges are expressed as a numerical value, equity requires that each judge has a vote of equal force and value. In our case, the average value of the condemning judges is 10. We can say, therefore, that the votes of the absolving judges will have the value of 10. Granted this, we can obtain the average by totalling the values of all five sentences and dividing by 5. This average will be the punishment to be given the accused, as follows:

The average punishment therefore to be meted out to the condemned is 2, whether this is two years imprisonment, a £20 fine, or whatever.

287. The solution to this third question is found in what we have already said. Members' rights can be injured by the government of a society in two ways:
1. By causing a loss or reduction in profit through bad administration to one, several or all the members.
2. By harming a single member or class of members through an inequable distribution of profits. For example, one branch of a manufacturing society may be favoured out of due proportion to others.

288. Whenever this danger is present, that is, when the society contains many different interests, unanimity is indispensable for an equable decision on matters under discussion, as we said.

289. What we said about majority decisions is also applicable to unanimous decisions: some matters require a unanimous decision in all societies; other matters require unanimity in only a few societies - in other societies, a majority is sufficient.

290. The members must be unanimous in all societies:

A) In laying down the pacts, constitutive conditions or laws of the society.

B) In making innovations or introducing exceptions expressly or tacitly(60) to the pacts and regulations agreed when the society was founded.

C) In changing or making exceptions to the unanimous decision of the members, whenever their consent is not clear and there is no time for consultation because of the urgency of the matter.

D) In making decisions about matters which, according to a previous unanimous agreement, must be settled unanimously.

E) In obligating the whole society to a third party, when the required faculty has not been granted to the administrators at the foundation of the society. If it has been granted (the normal case with business societies) the unanimity is indirectly present from the beginning.(61)

F) Finally, in all matters of doubt about substantial innovations not included in the pact founding the society, and in matters about which an individual member may claim, whenever he considers himself injured (provided the others, or at least the arbitrator to whom everybody must have recourse, acknowledge the claim as reasonable). In this case, the member has the right of veto or the right to request guarantee. If the others do not accept the judgment or sentence, the member is injured and can use coercion against them or withdraw from the society.(62)

291. This question also is easily solved from the principles given. Unanimity is required more frequently in more extensive societies, which contain many mutually opposed interests, and less frequently in societies where interests are less various.

292. A society may begin with one interest only, but develop other interests later. In this case, experience shows that matters can no longer be settled by majority vote without causing dissatisfaction and internal strife. This explains the treaty of Westphalia (29th October, 1648) in Germany after the establishment of religious parties: in imperial Diets, religious matters could now be settled only by friendly agreement, not by majority vote.(63) It also explains why the Council of Constance was persuaded, against the constant usage of the Church, to form its decrees through national rather than individual votes - individual voting was not possible because of the parties and interests. Martin V concluded (1418) particular Concordats with three nations, the English, Germans and French, which were to last five years. The last Concordat however did not have the assent of king and parliament. - The same principle was felt necessary in the recent question concerning the religious houses of Aargau. Among the Instructions voted by the grand council of Lucerne for submission to the next Diet (1842) we find: `If, contrary to all expectations, a majority of cantons declares itself opposed to the re-establishment of all the religious houses, the deputation will cease to take part in any further discussion and resolution on the matter. The deputation will solemnly reserve to itself the violated rights of the pact, of the Catholic population and of the religious houses, because NO MAJORITY VOTE can decide a resolution contrary to an article of the federal pact.' Other cantons acknowledged the truth of this evident principle in their instructions.

293. However, reducing this teaching of rational social Right to practice presents a serious and very great difficulty: how to obtain unanimity?

294. Rational Right offers two ways of solving the problem: one is intended to ease the path to unanimity, the other to find some suitable expedient when unanimity cannot be found.

295. The means for easing the path to unanimity does not apply to matters where an individual has an influential position in administration or government. As we have seen, arbitration or a judge, etc., are the only acceptable means in these cases (cf. 290). But many of the cases that should be settled unanimously can be partly decided by a majority. This makes their settlement much easier and can be carried out as follows.

All the mutually opposed interests relative to the purpose of the society must be accurately distinguished, and the members divided into colleges corresponding to these different interests. Each college has now only one interest, and anything proposed can be decided by majority. In this way, unanimity can be obtained without need for all the votes of the shareholders to be in agreement; it is sufficient that the votes of the colleges be in agreement. The smaller their number, the more easily they can agree.

296. Obviously, the decision will conform more exactly to rational Right in the measure that the mutually opposed interests are accurately distinguished.

297. In matters which, according to Right, must be decided unanimously, common interest and jural-moral duty obligate all the members to make every effort to obtain unanimity.

298. Thus:

I) When it is simply a matter of making the votes of the colleges, or of the interests, agree in the way described, the assembly of members (or, if they do not assemble, in some other way) must discuss the causes obstructing the agreement of the different interests. They must calculate the benefit to be obtained and the loss suffered by each interest as a result of a particular decision. Granted this approximate calculation, we would have the following jural law for reconciling the collisions of interests by means of an equable transaction: `The decision to be made is that in which every interest, after calculation of its loss and profit, has an expectation proportionate to its input, unless some interests could be benefited further without harm to the others.' The input of the interest or college(64) is understood as the sum of all the inputs of the members composing a college with the same interest. The equity and justice of this principle needs no demonstration.

299. As I have said, one interest could sometimes be favoured by the society rather than others, when the latter gain nothing by refusing the favour. This follows not only from the jural-moral principle requiring us to allow or do (particularly in the case of a society where social benevolence is necessary) quod tibi non nocet et alteri prodest [that which does not harm you and benefits another], but because such a law benefits each interest, which in its turn and in a similar situation enjoys the same favour.

300. Moreover the distribution of the expectation will be more perfect in the measure that the direct benefits and losses are calculated together with the indirect benefits and losses affecting each interest as a result of the decision.

301. Although this principle clearly shows the advantages of social assemblies, it also highlights a fault. Orators, like lawyers, promote their own cause by presenting favourable arguments, especially those that can effectively influence the minds of the assembly; at the same time they conceal or lessen the impact of contrary arguments. This defect perpetuates the dispute, deflects minds from the right path, and makes decisions depend more on eloquence than on the principles of equity and justice. For this reason, the statutes of assemblies which require unanimity should clearly state the matter to be discussed by each speaker, who must talk strictly to the topic.

Furthermore, let us suppose that the quota of benefits each college should receive from every decision has been previously fixed by the previously mentioned calculation (cf. 282), and is fully known to all. Any speaker who opposes a decision should simply show that its approval would result in a distribution of benefits and drawbacks out of proportion to the quotas of each college. Doing this, he shows the injustice of the decision. On the other hand, if he proposes and supports a decision, he need only show that he has calculated the benefits and drawbacks exactly and found the them proportionate to the quotas due to each college. He would thus show the decision to be just and admitted by all.

He could assume a third task, and show that the decision he supports, besides having the benefit of being just in the distribution of the benefits and drawbacks likely to result from the decision, has the merit of being useful either to all, one or several interests, without harming any of the other interests.
If he succeeds in demonstrating any of these propositions, his opinion must be admitted unanimously. It would be helpful if this regulation were determined in the statutes of the assembly, or in those of the foundation of the society.

302. Such a regulation would do much to unite feelings, especially if the following were added: `Whenever the majority of an interested college supports a particular decision, private speakers opposed to the decision will no longer be heard.'

303. On the other hand, whenever this kind of complex discussion does not unite the votes of the different interests, the argument must be divided and an attempt made to agree on a probable reckoning of the benefits and drawbacks that ought to come to each interest from the various proposals. If everyone agrees with the calculation, the equable, just decision, or the nearest to equity, is easily found. The matter is reduced simply to calculation, which should be accepted by all as part of the very constitution of the society.

304. Determination of the most just and equable decision among all those presented for discussion depends on two things:
1. Knowing the portions of capital contributed in communion by each college (this must be known from the start and is not subject to discussion), that is, knowing the quota of benefit and drawback proportional to these shares.
2. Knowing the benefits and drawbacks that result for each college from individual proposals. The members must determine this by calculation and discussion.

When all these things are agreed, the problem is solved without need for further discussion. According to justice and equity, the prevailing decision must be that of which the total benefits and drawbacks for each college are proportionate to the expectations proper to the quotas. If various decisions provide the same proportion, the prevalent decision must be that most useful to the whole community. A decision which not only helps everybody and distributes the benefits adequately, but also helps some or only one of the members superabundantly (and as equitably as possible) must prevail.

305. II) If the members cannot in any way determine the total net benefits (or drawbacks) that each proposal will probably bring to each college,(65) the society must choose prudent, skilled and particularly just persons to establish the total benefits.

306. Experts can be chosen equably in many ways. Each college can choose one as its representative, and see if these representatives can, through discussion, agree on the value of the total.

307. Or it would also be equable if the colleges (to each of whom a single vote is given, the majority vote) agree unanimously in the choice of one or more experts as arbitrators from outside the society, to whose judgment they will fully submit.

308. Finally, the third means would be the appointment of judges at the time of the foundation of the society. They would settle all possible controversies in the society, and decide the matter of the total benefits.

309. These judges must be nominated unanimously, or by majority vote of the colleges (not of the individual members), because every interest must have an equal vote in the nomination - right, whether small or great, is equally sacred.

310. They would constitute a tribunal which could appropriately be called the `social Tribunal' or `Tribunal of social justice'.

311. The right to govern is, as we said, a right, not some kind of seigniory. If we consider the nature of this right carefully, we see that it consists in the constant exercise of beneficence towards the governed society. Nothing can be more advantageous than government, without which society is lifeless and through which alone it attains its end. There are, however, certain advantages, which we have already indicated, in favour of the person possessing such right. Government is often sought and desired for the sake of these advantages (cf. 159).

312. Such a right in free societies, which form themselves spontaneously, pertains to the societies themselves because they have what we have called autocracy - that first, radical power presupposed by every society.

313. In order to activate government, these societies have four possible choices:

1. They can, without any express convention, leave all the members to administer, according to equity, the rules we have previously explained - purely social government.
2. They can give the responsibility of government to one or more members of the society without granting them the right to govern. The work of these members may be carried out gratuitously or counted as part of their social input - mandatary government.
3. They can entrust the government to one or more salaried people from outside the society - paid government.
4. Finally they can alienate the right to govern. It is not absurd for this right, like all others, to be alienable - invested government.

314. Alienation, which requires the consent of every individual member, can be carried out under a free or onerous title, as happens with other rights, and with or without conditions and limitations.

315. No convention is present in the case of purely social government, except relative to the mode of government. The other three forms of government, however, come about as a result of tacit or explicit convention.

316. Conventions about the right to govern can be of three kinds.

317. Some conventions aim solely at establishing that which rational justice would dictate in the absence of any convention. The matter of these agreements is not left to choice, although their mode or form may be the object of choice.
Others aim at determining, according to the rules of prudence, that which is not fully determined by rational justice.
Finally, others are simply the outcome of choice.

318. The first kind of conventions, the expression of rational-social right which should be in force even without conventions, does not require further comment. It is sufficient to refer to what I have said about the competence of government in the absence of conventions.

319. The third kind, conventions which are simply the outcome of choice, can be sufficiently dealt with as follows.

First, they can contain alienation of governmental rights to third persons outside the society under some onerous title, that is, in exchange for some recompense. But this alienation could also consist in granting these rights. In these cases unanimity of votes is indispensable.

320. Such conventions, when carried out amongst members, will be null if they contain anything contrary to rational justice, especially to laws emanating from the general and particular nature of the society.

321. Nothing imprudent renders such conventions null, although it may often be the source of harm to the society. When the damage reaches a certain level, it provokes the exercise of the right of guarantee and jural prevention on the part of the members. This exercise serves to modify such conventions, and to furnish them with remedies and supports that render them harmless.

322. Finally, conventions which aim at determining the distribution of governmental powers according to the rules of prudence (in so far as this distribution is left indeterminate by rational-social justice) merit particular attention. I think we have to indicate at least some of the principal maxims according to which these conventions should be formed.

323. First, we note that every member has the right of inspection over the affairs of the society and its government, and the right to propose improvements. Consequently, he can ask his companions to determine by means of special conventions or social laws the points of the general maxim which are uncertain or open to different interpretations.

324. Additionally, in the absence of an agreed government (in the case where members administer the society according to the principles of ordinary social reason), the members may ask for the establishment, through conventions, of a more regular government.

325. On the other hand, no member can claim, over and above the determination (through conventions and positive laws) of the maxims already mentioned, that the government should bind itself to over-restrictive prescriptions. Although uncertainty about the general maxim is harmful, the application of arbitrary, restrictive determination, for which there is no obvious need, is also harmful.

326. Finally, individual members can always demand that all their rights which would otherwise remain vague and uncertain should be explained and agreed by the society. This springs from their right of jural claim.

327. A complete list of these conventions would take us too far from our argument, but mention of some is indispensable here.

328. First, I have indicated several principles of rational Right relative to the necessity of the varying quantity of votes in various social deliberations. All the principles can be matter for a corresponding number of conventions.

329. For example, it is possible to doubt if a society can vote in the absence of some of its members. This doubt can be resolved by means of conventions.

330. If we consider the matter from the point of view of strict rational Right, it would seem that the absence of invited members at an assembly (they are not present either personally or through a procurator) implies their readiness to accept others' opinion.

331. However, the progress of the society will be more equable, regular and peaceful if presumptions are kept to the minimum. It is precisely through conventions which explain doubtful right, or which determine the most prudent way of proceeding when right does not determine it, that the need for presumptions is removed or diminished.

332. The solution of this doubt, in accordance with the principles explained, will be as follows:

1. Whenever the society is dealing with matters which, according to equity, should be decided by majority vote, those assembled can vote even in the absence of others duly called to the assembly. There is one condition: the total number of votes in favour must be equivalent to the majority required if all the members were present.

2. If a majority of collegial votes is required, the presence of a duly appointed procurator to vote for each college is sufficient. If some of these procurators are absent, it is sufficient for the others to agree on a point provided their number is equivalent to the majority required if all the members were present.

3. Unanimity of the colleges or the individual members is sometimes necessary. In this case, convention should establish the social obligation of every college to send its procurator, and of the individual to be present personally or through a procurator. This obligation must be sanctioned by punishments sufficient to ensure that it is fully kept.

4. It may happen that the subject under discussion cannot be deferred without harm to the society. In this case, the society can deliberate provided all, or a majority of those present, agree. Absent members should submit not only to the penalties already indicated, but also to the decision taken in good faith by the assembly.

333. I say `not only to the penalties already indicated', because the absence of members from social deliberations is always harmful to the society and to the absent member. The regular, harmonious progress of the society suffers greatly, and social efficacy and co-operation weaken through bad example. It is not enough, therefore, to punish a negligent member with the disadvantageous consequences facing him as a result of the deliberations taken in his absence (these deliberations may be of no effect to him); it is also just that he should make some reparation to the society for the harm he has caused it.

334. Secondly, it helps if conventions are established to determine and evaluate the uncertain and doubtful input of each member.

335. We have already seen how to determine the social value of the input of the member who contributes only his own work to the society (cf. 244-254). Doubt could arise, however, if the member's input consists of fungibles or non-fungibles, that is, if the input is the thing itself placed in communion or its use. The Austrian civil code resolves the doubt as follows:
When the contribution is money, or fungibles or non-fungibles whose value can be estimated in money, the profit obtained from the contribution, along with the capital, is to be considered as common property in relationship to the members who have contributed.(66)

336. If the members, in consigning something to the society, declare that they are placing in communion only the enjoyment of the thing, are they also ready to accept the destruction of this thing, or is the society responsible for the loss? The French code,(67) followed by various Italian codes,(68) resolves the doubt as follows:
If the things whose enjoyment alone has been confided to the society consist in certain determined bodies which are not consumed in use, they remain at the risk of the member who owns them. If these things are consumed in use, or they deteriorate by being kept, or are destined to be sold, or are placed in society at a price already established by an inventory, they remain at the society's risk. If the thing has been valued, the member can only claim the amount established.

337. These solutions to the doubts mentioned seem dictated by equity and prudence. The legislators we have quoted saw the advantage of explaining doubts in all societies. On the other hand, they also knew that people who form societies are not always sufficiently aware of the need to explain doubts in their conventions, or to explain them equably and prudently. As a result, they raised these explanations to the status of civil laws which regulate all societies open to such doubts.

338. Third, conventions can also be useful when the burdens and expectations of the members remain doubtful. Let me give an example.

339. Are anonymous members in a business society under the same obligation as Names to repay the society's creditor to the full extent of their possessions? This is one of many possible doubts.
According to the Austrian civil code, anonymous members are not held responsible beyond the capital contribution; Names, as such, are held to the full total of their possessions.(69) According to the code of the Canton Ticino, anonymous members must be limited members, that is, they must have actually made a convention to undertake responsibility only for the capital they place in communion. The code's intention seems to be that of absolving anonymous members from responsibility for sums greater than those contributed to the society.

340. No reasonable objection can be made to these very similar decisions, but it is still necessary to determine the consequences, according to the equity of social justice, produced by such a contract between anonymous, or limited members.

341. Equity requires that fruits or social benefits be distributed in proportion to the input of each member. But if Names have to act as guarantors for the society to the full extent of their possessions, and anonymous members simply to the extent of their contributions in communion, it is clear that the former take a greater risk than the latter (the risk, in this case, is the amount of money that could be lost). If the equable principle which divides benefits according to contributed quotas is to be operative, equity requires that Names be granted a share proportionately greater than that proper to anonymous members. Names should be recompensed with benefits proportional to the value of the greater risk to which they are exposed. It is this point precisely that should form the matter of convention or even of civil law.

342. Some societies lack conventions about the right to administration. In this case, the members are the administrators and can carry out social activities on behalf of their societies, provided they do so without damage to the societies or their members. Nevertheless, this freedom often opens the way to abuse. Prudence must intervene to dictate to the members certain conventions which establish procedure for social activities with the intention of preventing abuse and guaranteeing the rights of all.

343. Here too I give an example taken from a particular, private society. Because we are explaining universal Right, there is no difficulty in applying to public societies the principles shown to be valid for private societies.

344. Our example, therefore, is a society in which one member places cattle in communion and another contributes the work required to pen, feed and care for them. The intention is to divide equally (or in some other proportion) the increase in the number of cattle. This is agistment; the person contributing the cattle is the conveyer and the person taking care of them is the agister.
If no other convention has been made between the parties, rational social Right does not prevent the agister from taking for himself a part of the increased number of cattle, provided he can show the conveyer that he has not taken more than agreed. Clearly, however, the freedom left to the agister could give rise to abuse damaging the conveyer . Limiting this freedom, by means of conventions which determine how the benefits should be divided to the mutual security of the parties, is in keeping with prudence.

345. These conventions also were thought very necessary by legislators who elevated them to civil laws as a precaution against negligence and lack of foresight by transgressors.(70)

346. Finally, the work of social organisation provides very extensive matter for conventions. This work, if lacking precision and unexplained by clear conventions, may remain uncertain in the minds and hearts of the members, give rise to disagreements, weaken the society and block the attainment of its end.

347. Conventions dealing with this matter rather than any other are more likely to be:
1. Freely chosen, that is, just (to the extent that the parties dispose of their own rights), but imprudent (in the sense that rights are disposed of incautiously and with regrettable consequences harmful to the parties to the agreement).
2. Prudent, that is, carried out with such foresight that the contracting parties actually attain the end proposed (particular and social good) without subsequent regret.

348. I said that such conventions, when freely chosen, may be just, but imprudent. However, careful consideration shows that the unfortunate consequences rendering these conventions imprudent often depend upon some lack of equity in their formation. The parties are happy to concentrate on matters of crude right rather than on what pertains to fully rational right.

349. This happens very often. Crude right is obvious to everyone, but that which is more equable has to be sought with great care, and is found only by people of considerable perspicacity (cf. RI, 1185, 1262).

350. In fact, the value of crude right goes no further than the present moment; equity requires consideration of the value that the right receives from its necessary or probable consequences, even if the ignorance of the contracting parties prevents their calculating it. For example, we sometimes see that the contracting parties' intention is to make not a donation or other gratuitous contract, but an onerous contract in which they clearly want equality of value between what is given and what is received. The parties, if they wrongly calculate the true value of the rights they cede, sell or exchange, do not intend this, and the mistake is a case for the maxim: `Error is not the basis of payment' (cf. RI, 1185-1262).

351. The application of this principle should not be taken too far; it would overthrow many contracts made in good faith. Indeed, great care is needed in applying it.

352. The application takes place, however,
1. Every time the inequality in the contract is the result of bad faith;
2. Every time the right, which has been undervalued by one party, has a greater value not only in itself, but also relative to the party who alienated it. If the alienating party either did not know how to profit from the right or was unable to do so, the contract is not inequable even if the acquiring party benefited immensely. It is not the true, common price of the thing which must serve as a basis for calculating damage in contracts, but the true, common price in so far as this price is valid, or can be valid for the possessor of the thing. This observation has been omitted, I think, by Mastrofini and others who have discussed the question of damage.

353. As far as I can see, careful consideration will show that conventions relative to social government perhaps always lack equality in the absence of prudence. Equality is re-established, however, if ignorance and incapacity for using the right to govern (on the alienator's part) is brought back into the calculation.

354. For example, we have seen that according to rational Right certain social affairs have to be determined by the will of a single party, other affairs by a majority, and others unanimously. This is a first division of power and social government, and needs further refining.
Each of these ways of determining social affairs could involve alienation as a result of a third person's power to dispose of the rights of the individual members, or a single person's power to decide the needs which, according to jural prudence, are proper to the majority or the entire body. In such a case, there would be inequality and lack of equity in the convention if the person acquiring the rights did not offer sufficient remuneration, or rather an indemnity calculated on the value of all the probable harmful consequences to the society and the individuals who compose it. It is highly probable, in fact, that we have to foresee considerable damage resulting to the parties who, in altering this natural order and distribution of power, have alienated social power which now becomes useful only to the person to whom government, and power, has passed.

355. Conventions of this kind, although not opposed to strict right, would not seem praiseworthy on the grounds of equity or prudence. Other social conventions, however, are both equable and prudent. These simply sanction the better distribution of governmental power in accordance with the indications of nature and jural reason, and determine this power in such a way that it is known without doubt by everybody. In this case, the new distribution is rendered efficacious as help is given and obstacles removed. I now have to give some examples of these social conventions.

356. An assembly can take decisions, either by majority vote or unanimously, without always being able, of its own power, to effect the decision. On the other hand, leaving the execution and administration to each individual member is not without danger, except in certain simple, determined societies which are concerned with one matter alone and have only a single way of dealing with it. Business societies would be a case in point. In the first place, therefore, it is normally necessary for a society to lodge its executive powers with certain persons within or without the society (an executive).

357. However, disagreements will sometimes arise in the same society which cannot be settled directly. These occur, for example, in matters where rational Right requires unanimity, and in all the disputes between the government and the individual members, a group of the members, or even all the members. In the second place, therefore, it is necessary for the society to provide certain persons outside or inside the society with judicial powers (a tribunal) (cf. RI, 463-466).

358. Again, social explanations, their execution and the decisions of the appointed judges could be neglected, attacked or violated. Finally, therefore, it is necessary that the society provide certain persons inside or outside the society with powers of coercion (a coercive force).

359. An executive, a tribunal and a social, coercive force are institutions emanating from the concept of society. They are powers which are usefully or even necessarily separate from the assembly, that is, the complex of members.

360. Moreover, these offices are of their nature separate. If, for example, the executive were united to the tribunal, the quality of judge and party-at-law would be confused. The coercive power, if united to the executive, would no longer sanction the decisions of the tribunal, but support the claims of the executive, the powerful party. Finally, it is not fitting for the tribunal to have control of the coercive power. This power must be able to intervene, even before the decision of the tribunal, every time there is evident infraction of social laws. There will be certain urgent cases in which fundamental and therefore unanimous law has already established authorised intervention by the coercive force without need of recourse to the tribunal. It also seems fitting and decorous that the office of justice should not be mixed with any other element, but depend for its strength on the power of justice alone.

361. The harmonious interaction, the principle of agreement and the source of unity between these three powers is a great problem which we shall deal with in the section on special social Right, especially civil social Right.

362. Conventions are equable and prudent when they tend to maintain that part of affairs and power which pertains to the three subjects: the individual members, the majority and the entire body. Other conventions are equable and prudent when, having to set up an executive, a social tribunal and a coercive force separate from the union constituted by the members, they aim to keep separate from one another the three supreme social ministries.(71)

363. There is nothing to prevent these three supreme ministers from being members of the society, but in this case we have to distinguish carefully their twofold state as members and officials of the society. Each state has its own different duties and rights which should not prejudice or alter those of the other state.

364. Negligence in distinguishing clearly between these two jural persons is one of the principal causes why social Right looks like a hopelessly tangled skein, and the business of politics goes forward more by chance than jurally.

365. It would help to distinguish the jural person of the member from the jural person of the official if the officials were given a title which they could use when acting as officials. However, conventions intended to keep these two jural persons distinct are as conformable to equity as they are to prudence.

366. The way in which officials are to be elected follows from what I have said about the attributions proper to the majority and to the totality of the members.

367. So far I have divided social power and government into its broadest elements as a result of examining the concept of society in general. Seven distinct subjects of social duties and rights have emerged, all of which can be at least mentally distinguished in every society. They are: 1. individuals in the act of associating; 2. individual members already associated; 3. the majority of members; 4. the totality; 5. the executive; 6. the tribunal; 7. the coercive force.

368. To give some idea of the duties of these seven subjects, we must first recall that each society has a common, ultimate end and a proximate end.(72) The seven subjects have duties relative to the final end and to the proximate end. Of the two sets of duties, the former are more important, and generally neglected by publicists.

369. The duties of these subjects relative to the final end, which is equally common to all societies, are reduced to three supreme categories which I have expressed elsewhere as follows:

1. Not to obstruct the individuals composing the society so that they are prevented from or hampered in achieving true human good, the final and essential end of both the individual and society.

2. To remove, in so far as possible, every obstacle which hampers individuals in the achievement of this end, and particularly, to defend the right of each against any usurpation and oppression by others.

3. To co-operate positively, using only the means proper to social government, so that individuals are encouraged and guided directly to the acquisition of true human good.(73)

370. These duties may be summed up in the single duty through which every society is obliged not to place any obstacle to the eudaimonologico-moral perfection of human beings. Viewed in this way, it is clear that these duties are essentially social, imposed upon society as a whole and on all societies. They are consequently obligatory for all their individual members, and in particular for each of the seven subjects I have distinguished, that is, for everything which in society is susceptible of duty.

371. All the seven subjects have, therefore, a great, primitive, common duty with three branches, each of which splits into many others. This common duty is then modified in its exercise according to the condition of the subject in which it is considered. Each of the seven subjects has to do what is necessary within its own sphere of power, and consequently with different means to assist, not harm progress towards the supreme end.

372. For example, the first subject of duties, that is, individuals considered as acting together to form a society, must fulfil this great duty by not founding any society whose nature is contrary to the eudaimonologico-moral end of every legitimate association, and without inserting anything opposed to this end into their fundamental pact; they can do nothing which can harm, impede or delay this eudaimonologico-moral end.

373. The second subject, the individual members, have to keep this end in view while supporting and protecting their own rights, and when voting in assembly. In other words, they are obliged to act conscientiously, morally and religiously.

374. The third subject, the majority, has to abstain from setting themselves up as a party, from oppressing the minority or from usurping decisions in matters that require unanimity amongst the members.

375. The same must be said about the executive, the tribunal and the coercive force. Each group will exercise the service committed to it by supporting, not harming, the true, human good of every human being.

376. In a word, everything in the society must be penetrated by a noble sense of the moral destiny of the human race; everything has to proceed in harmony with this sublime destiny. The spirit of benevolence must penetrate the entire society, and every subject of right must aspire, by using the powers and means entrusted to him, to help his associates and himself, altogether, fulfil their happy calling.

377. Besides these shared duties, whose object is the remote end of societies, other shared duties have the proximate end as their object. Clearly, everything in a society must tend to the end for which it was instituted, granted always the perfect preservation of the remote end.

378. This explains:
1. The duty of equality, on which society itself must be founded, and the reason why each member must put in communion what he has promised,(74) sharing the burdens and social benefits equally in exact proportion to his input.(75)
2. The general duty of co-operation, that is, of co-operating in the social good without ever opposing it.(76)

379. Besides the general duties common to the seven subjects already mentioned (duties concerning the twofold social end), there are duties proper to each subject. These duties spring from the office which each subject has to exercise towards the society, and are reduced to the use of the different means possessed by each subject for the attainment of the twofold end.

380. The duties of the social officials who constitute the executive, the tribunal and the coercive force are determined in part by the nature and end of the office, in part by conventions.

381. These duties can only be enumerated, therefore, by drawing them out from each of the two sources: the natural source which consists in the nature and end of the office, and the conventional, which consists in positive conventions.

382. These conventions, a simple expression of the wills of the contracting parties, are shown either orally or in writing, or by other signs (normally, customs and opinions).

383. Nevertheless, our work requires that we name the most moral and important of these duties, that is, the obligation incumbent on each of the named officials of submitting, without reservation, to the supreme decisions of the social tribunal.(77) The entire society must be subject to these decisions; from the first moment of its foundation, the society must submit itself freely and irrevocably to the competence of this tribunal (cf. RI, 610-612). Without this fundamental law, the society's existence is always precarious.(78)

384. The rights of social government also depend upon the nature and end of society and on special conventions. Many of these rights have already been clearly posited as a result of what was said about the social duties to which they correspond.

385. However, it will be useful if I add something about the rights of each of the officials in society, taking into account both the nature of each office and the conditions by which apposite conventions bind the officials.

386. As we have seen, the conventions that a society makes are either simply just, or just and prudent simultaneously. Some just conventions, if considered simply according to the concept of the societies themselves, would not merit the appellation `prudent'. The opposite is true if we consider the circumstances in which associated individuals find themselves. For example, let us imagine that none of these individuals had the necessary qualities for the social offices. In this case there is no doubt that it would be prudent to confide the offices to capable outsiders wholly fitted to exercise them. If the prudence of conventions depends on the calculation of the social utility they have to produce (and we are speaking about the maximum possible utility, granted always the equity of its distribution), there is not the slightest doubt of their prudence when they are shown to be not only useful but necessary.

387. I also noted that the justice of these conventions is of its nature subjective, that is, relative to the conditions and dispositions of the subjects. If a society is unable to discover the best conventions for its end, it is sufficient for it to forge the best it can. These are just, even relative to the benefiting party, provided that the thing considered in itself is just, and notwithstanding any omission in the calculation of the value of the consequences. Jurally, this value is non-existent for a society that ignores it and is incapable of considering it. Nor is its loss absolutely certain, but only probable, because founded on the supposition of united human activity - a supposition which is sometimes belied by more generous activity than usual from the benefiting party.

388. These reasons show that the case of alienation of all or part of social powers is jurally possible.

389. It is certain:
1. That the office of government can take on the nature of right because it can be considered as a eudaimonologico-moral good; and
2. That it is alienable whenever the members unanimously alienate it.

390. This alienation can take place in many ways because:
1. It may include only a part of the social powers, or all of them (the innate rights of individuals, and their social consequences are always excluded).
2. It can be absolute or conditioned.
3. It can be done freely or subject to recompense.
4. It can be done for a given time or in perpetuity.

391. If we suppose it to be done without any time-limit, so that the entire ownership of governmental right (which must always be distinguished from seigniorial right) passes to one or more persons, we can ask:
1. Whether the person who acquires the ownership to such a right can himself cede, sell or in any other way pass it on without having to consult the society, or can dispose of it in his will, or whether, in the case of intestacy, it passes naturally to his children.
2. Whether the society can deprive him of his right in the case of abuse.

I think it necessary to offer some individual comment on these two matters.

392. I reply to this important question:
1. It is necessary to examine all the circumstances of the contract by which the society passed the right of government to others. Can we reasonably presume that the will of the society was intent simply on transmitting such a right to a competent, qualified individual for the sake of being governed by him? If we can, this person cannot alienate the right, nor put someone else in his place as governor, without the consent of the society which invested him with the power.

393. In doubt, this must always be the presumed intention of the society when there is no evidence to the contrary (cf. RI, 1172-1173). Acceptance of the opposite intention requires prior proofs.(79)

394. 2. If it can be proved that the alienator's intention was indeed to concede to the chosen person both the right of government and the faculty of passing it to others (for example, to anyone he thought best suited for the post), we have to note that the right to full government, or to part of government, would change its nature if divided between several people, or restricted to a smaller number of persons, or if its form were changed. Consequently, a person invested with this right can never divide it or change its form without the consent of the society.

395. 3. If the person granted the right does not divide it or change its form, he is perfectly entitled to pass it to another, just as he can with anything that falls within his ownership, provided the person to whom it is ceded is capable of fulfilling its obligations.

396. 4. The right of government can also be inherited under the same conditions, as long as the society subsists. This does not mean that the society, through such alienation, has contracted an obligation to preserve itself in being for longer than it would have done if the alienation had not taken place: government is for society, not society for government. Moreover, this succession can come about through a will or, in the case of intestacy, according to common Right of successions and pacts. Note, however, that the power, when passed on in this way, cannot be divided or substantially modified without prior consultation and agreement with the society.

397. I have already laid down the general principle that `the abuse of one's rights does not lead, at least directly, to the loss of the rights abused.' Thus I have distinguished 1. the right, 2. the abuse of the right, and have established that the rights of defence, guarantee and compensation must be exercised against the abuse of right, but with the least possible disturbance to the right itself.

398. Unfortunately, in practice, the world operates according to a totally different principle. Once an abuse of a right is noted, interested, powerful parties normally hasten to deprive the abuser of his right, as though he were unworthy of it, instead of confining themselves to suppressing the abuse and rectifying the use of the right. Civil governments themselves often act in this way. It is true that this is the swiftest procedure, and that people are sometimes moved to prefer it through their desire to take over the rights of others rather than through ignorance of some better way of acting. An immense number of usurpations and revolutions are justified under such a pretext which often becomes the source of the so-called right of conquest.

399. Not even a society, therefore, can despoil a person of the right to govern if this right over the society has been passed to his full, absolute ownership, although the society's right to self-defence against persons abusing the right remains intact together with the right to require damages for harm sustained. Finally, the society also has the right to demand guarantees for the future. All this, however, has to be carried out according to the principles already explained which must regulate equally both the exercise of the right of guarantee and the other two rights of defence and compensation (cf. RI, 1820-1900).

400. It may happen that the society has no other way of requiring its right from the person who possesses the government than that of suspending this individual or collective body from his position as governor until the society's rights are satisfied and sufficient guarantees have been found and given. However the right itself of government (with which the person is invested) must not be destroyed, and its free exercise restored as soon as possible.

401. In a case where injury gives rise to the application of the rights of defence, compensation and guarantee (rights common to the society and to every subject), it is possible to emend inconsiderate conventions which although initially just, are not equable and prudent.

402. Nevertheless, this task also has to be carried out according to jural reason by gradually modifying the conventions, not by breaking or destroying them. Change must be limited simply to what is required by the three rights (defence, compensation and guarantee) already indicated. The actuation of these functions of right as a result of injury is the occasion for emending little by little the defect of social constitutions, or of conventions agreed rather imprudently.

403. However, the ownership of the right of government with which the person is invested may be conditional rather than absolute. In this case, the society can actuate the conditions, and even despoil the person of government if he fails to fulfil those to which his government was essentially bound.

404. If no conventions alienate the right of government from the society, in part or wholly, the society exercises its own right through the work of others (mandatary government, salaried or not) and, invested with this right, chooses officials for the different duties of the executive, the tribunal and the coercive force.

405. These officials can be entrusted with the exercise of different social offices either without express conventions or according to express conventions and conditions.

406. In any case, such officials are not in the jural state proper to bond-servants, but are simply ministers relative to the society which makes use of them.(80) Hence:
1. They undertake the work voluntarily on the basis of a bilateral contract.

407. 2. The officials are obliged to fulfil whatever the nature and the end of the office requires, and to observe all they have promised; the society is obliged not to require more of them, and to maintain the agreement.

408. 3. In things pertaining to his office the official is superior to the members of the society or to parts of it whenever these want to make him do something at variance with the nature of his office. The official is responsible for his work and is therefore the competent judge, granted that the hierarchic subordination of one official to another is respected.

409. Every social office is therefore a true power invested in the person chosen for the office. His duties do not depend upon what people want, but upon the nature of the office itself.(81)

410. 4 Sometimes this power can be revoked by the society only after the time determined by the nature of the matter, or by express convention; at others it can be revoked at the society's pleasure. In the first case of revocation, the official's title could be that of invested official; in the second case, mandatary official.(82) In doubt, the official is to be regarded as a simple mandatary.(83)

411. At this point, it is easy to see:
1. That in entrusting a social office to a person, a society also gives him the right to use the means necessary for the office even without express agreement about this.(84)

412. 2. That all the members must respect the official in his work. He must be assisted, not impeded, in his office, and obeyed in everything necessary to achieve the end of the duty entrusted to him.(85)

413. 3. That if certain persons have been given certain offices, the right which the members previously had to carry out these offices now ceases.(86)

414. 4. That the official must be considered immune, or compensated by the society, in the case of any harm or danger inseparable from his office.(87)

415. Collisions that could occur between rights which originate from the social state and those outside this state have to be resolved peacefully with the means already indicated: discussion, compromise, arbitration and decisions of the appropriate tribunal (cf. RI, 462, 501, 505, 1026).

416. Finally, many of these collisions can be avoided by the exercise of wise foresight on the part of founders or legislators of societies who forestall difficulties by express, prudent and opportune pacts.

417. It is clear at this point that in every well-regulated society the conventions forming it, that is, its legislation, have a twofold origin dependent upon the twofold end proposed for the conventions. These laws aim at:
1. The precise determination of rights according to jural reason; or
2. With this determination safeguarded, the prevention of conflicts and collisions between reciprocal rights.
The first kind of conventions or laws may be called jural-social, the second politico-social .

418. Politico-social laws which lose sight of their jural reason (this often happens) are unacceptable.

419. However, it can sometimes happen that these laws, without being unjust, modify the rights which jural reason would establish. This would be the case whenever the modification is carried out with the express or presumed consent of all the members, or with some obligatory consent dependent upon another jural reason.

420. It is also equable that this modification or tempering of rights should take place when it is of real help to all those included in the convention or subject to this law. By `all' I intend to include the reciprocity that arises in a great number of cases to which every member will in all probability be subject.

421. One example of the politico-social laws which limit individual rights in an endeavour to avoid collisions between individual and social rights can be found in the French code. One article establishes that
When one of the members is a creditor, on his own account, for a sum of money from a person who is also in debt to the society, the creditor has to apply to the society and to himself what he receives from the debtor in proportion to the two sums owed, even if his receipt shows that he had claimed the whole debt for his own account. If, however, he declares in the receipt that the whole sum will be paid entirely to the credit of the society, this declaration will be observed.(88)

422. This law obliges only the members. A creditor who is not a member is fully paid by the debtor who at the same times also owes something to the society. The law therefore determines that an individual will lose part of his right solely because he has become a member of the society. Of its nature, this is contrary to jural reason, according to which there is no motive requiring anyone who enters a society to lose part of his individual rights or undergo their invalidation. But political reason, which has the good of the entire society as its end, enters at this point, and says to the members: `Imagine that you do not consent to subordinate your private credit to that of the society, and are not prepared to promise that you will not require from debtors who are also debtors to the society more than the proportion between your credit and the social credit. In this case, any member who knows how much is owed to the society will be able to forestall payment of those debts by covering his own first and leaving those of the society exposed.'

Abstractly speaking, it is important that such damage to the society be avoided, and the advantage of avoiding this pitfall may encourage all the members to submit to a convention restricting their individual rights. The French legislators thought such a convention so equable that they made it civil, public law, and were followed by others.(89)

423. There is no doubt that the law, from this point of view, acts prudently, but I am not at all sure that a prudent attitude of this kind authorises the legislators to overthrow the fullness of individual rights for the sake of safeguarding social rights. Rather, I think it the most holy duty of every public legislator to have the highest respect for all the rights of the individual, which should not be weakened without evident necessity. Only after the necessity has been verified does the consent of the individual become obligatory and, therefore, legitimately presumed by the legislator.

424. In a word, I will never tire of affirming that in my opinion legislations which show greater respect for individual rights are more moral and liberal; legislations are more perfect when they conserve individual rights as far as possible, sacrificing only the smallest part of them in order to avoid evidently greater inconveniences. Mature wisdom is often able to find other ways of reconciling rights.

As I said in another place, the perfection of civil codes will lead them to establish the most careful separation between politico-social and jural-social laws.

Notes

(40) Cf. 177-190.

(41) §833.

(42) In his Principî del Codice Civile generale Austriaco, c. 16, Zeiller says: `Every individual participating in the communion is absolute owner of his share. - He can freely dispose of it, etc.' This kind of ownership, however, concerns the rights which the Austrian code calls `personal rights over things', that is, a right to things rather than in things. In fact, what is placed in communion becomes confused in the total contribution and can be considered as a credit towards the total contribution in which the value of the object of ownership, not the object itself, is materially determined.

(43) The Austrian code recognises this principle: `As long as all the members agree, they represent a single person with the right to dispose arbitrarily of what is in common. If they do not agree, no innovation which disposes of a member's portion may be made to the common holding' (§828).

(44) The right to renew boundaries is more concerned with the avoidance of harm than with improvement. The Austrian civil code recognises this in §850: `If, for whatever cause, the indications of the boundaries have been so damaged that the boundaries could become unrecognisable, every member can require the common renewal of the boundaries.'

(45) Art. 1882, 3^o.

(46) Civil laws often presume the presence of the faculty of administration in individual members. The Albertine code says: `In the absence of special conventions concerning the manner of administration, the following rules are observed: 1. The members are presumed to have reciprocally given each other the faculty of administration. The action of each is valid relative to the other members even if their consent has not been obtained. However, the right of these or of one of them to oppose the action before its completion is safeguarded' (Art. 1882). The reason for this broad presumption is that administrative actions concern economic societies and are so determined that it is easy to prove to everyone their necessity and utility. Consequently there can be no great difference of opinion about them. On the other hand, whenever the matter is serious and so little determined that the consent of others could not be presumed, an individual member has no right to act. Hence, the same article establishes as the second rule: `Without the consent of the other members, an individual member cannot introduce innovations affecting the immovables dependent on the society, despite the benefits he may claim for the society.'

(47) Albertine code, art. 1882, 1^o. - If the thing shared in common can be used by individuals without ceasing to be common, they may use it, provided they keep within their quota and do not prevent other members from doing the same. A partition wall is a case in point. Use of the wall is laid down by the Austrian code as follows: `Everyone sharing a wall with another may on his side use the wall up to half its thickness; he may devise false doors and insert wardrobes where there is nothing corresponding on the other side' (§855). Rational Right would seem to forbid the use of the common wall up to half its thickness because, if one of the sharers uses it in this way, the other is prevented from doing the same. The code itself recognises the obligation `not to impede in any way a neighbour's use of his own portion of wall' (ibid.). It would be necessary therefore to establish that a certain thickness be retained between the holes made by the two sharers on their own side of the common wall; alternatively, the two parties must reach some understanding.

(48) The Albertine code states: `The dissolution of a society through the will of one of its parts takes place only in societies whose duration is limitless, and is effected by means of a renunciation notified to all the members, provided the renunciation is made in good faith and within due time.' (Art. 1892).

(49) Cf. the Austrian code, §833.

(50) The Austrian code says: `Every member is responsible for harm to the society caused through his own fault. This harm cannot be compensated by anything useful he may have done for the society in another way' (§1191. The French code, followed by the Albertine (art. 1873) and others, had already said the same (art. 1850). But the Austrian code adds (and, in my opinion, with equity): `If however the member has undertaken some new enterprise on his own authority which has resulted in both harm and benefit to the society, a proportionate compensation will be imposed.'

(51) Cf. the French code, art. 1853, followed by the code of the Canton Ticino, art. 903, and the Albertine, art. 1816.

(52) §1193. - It would perhaps be desirable to add the clause that the evaluation of the contributed labour, and therefore the portion of money, should be fixed by persons expert in the matters in question, chosen by the judge, or by the parties with the judge's approval.

(53) §1192: `The capital remains the property of those who have contributed to it, unless the value of work has been calculated as capital, and all of it declared a common good.'

(54) The Austrian civil code says: `If the society has lost the contributed capital either completely or partly, the loss is distributed in the same proportion as it would have been in the contrary case. The person who has contributed no capital loses his work, that is, he loses the profits that would have been due to him; this makes him equal to the others. But he does not lose his labour, which is his capital. Thus, he is benefited by the others without good reason.'

(55) The Austrian civil code stipulates: `Documents are deposited with the oldest member by age' (§844). In my opinion, rational right requires the depositary to be elected by a majority vote instead of being appointed so casually.

(56) Austrian civil code (§836): `If an administrator of what is held in common has to be constituted, the choice is made by a majority of votes, and failing this, by a judge.'

(57) Austrian civil code (§833): `Matters which concern solely the administration and ordinary enjoyment of the common capital are decided by majority vote.'

(58) When civil societies do not have this just, equable organisation in which all the interests at which a society aims have due representation and power, the first evil, and the source of innumerable other evils, is legislation lacking justice. One example is England, a nation whose great, national sense of morality and justice cannot be denied. If we consider the constitution and its consequent political legislation the truth we are presenting is clear. British land belongs to about 6000 families, who up to the present, we can say, were alone responsible for the running of the State. As recently as 1838, to be elected to the House of Commons required £600 in annual income in the counties and £300 of property in the cities. It was only natural that the Landlords, that is, those who possess the land, passed laws exclusively for their own profit. The Corn Laws have virtually forbidden the import of foreign grain and have kept at a very high price the produce landowners alone sell to the people without competition. They also hold their lands almost entirely free from tax. It is enough to say that estates in Britain pay neither levy nor communal duty, nor any duty on the right to change ownership, nor hereditary tax. In a word, the gross revenue of the British treasury is today £52,000,000. Indirect taxation contributes not less than £38,000,000. The direct taxes on land, including royal lands, contributes only £1,532,000. We could apply the same reckoning to the history of the British laws for Ireland, but mention of the recent memoir published by Daniel O'Connell would be enough.

(59) Dissert. proem. 12, §614.

(60) This principle is recognised by the Austrian civil code, §828.

(61) The Austrian civil code states: `Without the express or tacit legitimate consent of the members or their proxies, the society cannot be obligated to a third party. Among businessmen, the notified power of signature, that is, of signing documents and scripts in the name of the society, gr