Return to Contents

Universal Social Right

Chapter 9

Communal right in so far as it is the third part of universal social right

425. I have already spoken about certain duties and rights common to the individuals who make up society (cf. 195-221).(90) I spoke about them previously because I wanted to show the extent to which the influence and weight of each individual, which flows from his individual rights, should effect social progress. I do not think it necessary to repeat what has been said, and I leave to the reader the responsibility for drawing the conclusions that flow immediately from my statements.(91)

I have also spoken about the universal origin of society, which lies in the co-involvement of the acts of will of the members and which, therefore, pertains to communal Right (cf. 123-125). It will, however, be helpful to consider these acts a little further. I still have to comment on the nature of the right of association and other rights consequent to this. Later, I shall deal with some of the principal questions pertaining to this part of social Right. First, therefore, I shall deal with freedom of association, then with social ownership, before concentrating on the solution to these questions.

426. First: has every human individual the right to associate with his fellows? I answer by distinguishing between harmful and unharmful societies.

427. If the aim of a society contains harm to the rights of others, the society is obviously unjust. Those whose rights are harmed can, therefore, have the society blocked or destroyed.

428. If the society is harmless relative to its end, but uses means which could damage others' rights, those who suffer can claim the abolition of these means, but not the destruction of the society, which can subsist without such means.

429. Finally, if the injury originates not from the end nor the social means, but from the improbity or lack of skill of members who abuse the social means, there is a right of defence and guarantee against individual members.

430. If a society is immoral, but without harm to the rights of others, it is certain that no one has the right to form it. Others can impede its formation only if they do so without invading the sphere of rights of those composing the society who would thus suffer harm.

431. On the contrary, all human individuals have the right to associate in just, lawful societies. Lawful societies are those without immorality in their end and their means; just societies are those which do no harm through their end or their means to the rights of outsiders.

432. This right of association has its root in innate rights and is comprised in innate, relative freedom (cf. RI, 65, 81-83, 273, 284). Innate, relative freedom is that freedom of action which cannot be limited jurally except by others' ownership. In other words, each person can do everything lawful which does not offend others' ownership by despoiling persons of that which they have jurally united to themselves, as I have shown (cf. RI, 80, 81). Hence:

433. 1. No individual can take from others or restrict freedom of association when the associated members propose in all their activity to observe, without damage of any kind, the rules of that Right which is common to all.

434. 2. If an individual cannot prevent his peers from associating freely, can a society prevent them or prevent certain individuals from associating amongst themselves? Certainly not, provided that the new association harms no one's rights. This is so because no society of any sort can harm innate, relative right; it will be better understood if we consider that rights existing in a society are ultimately the rights of individuals. The true, real subject of every right, as I said elsewhere, can only be the individual.(92)

435. I want to set out this reply more adequately by distinguishing outsiders from the members who compose a society. A society can forbid its members, while they are members, from joining other societies if their new obligations are incompatible with membership of the first society. In this case, a portion of the individual's freedom can no longer be disposed of without harm to the ownership of the society to which the individual already belongs.

436. No society can impose such an impediment on outsiders because they have not obligated part of their freedom to it.

437. 3. Can a superior impede such association on the part of one of his subjects? It is clear that he can, if his power extends to that portion of freedom which the subject would dispose of by associating.(93)

438. Another important question follows. Let us imagine that the society which certain individuals want to form amongst themselves is lawful and just, and cannot be blocked by anyone. Nevertheless, other individuals or societies fear its existence. This would be the case if the group uniting constituted a force that could be abused with harm to others. Would this reasonable fear, founded as it is in the natural, common inclinations of human nature and its savage tendencies, offer some right to oppose the formation of the dangerous association?

I reply that the right to restrict others' freedom and the right to defence and guarantee are two different rights. The first is much more extensive than the second. No individual and no society, therefore, has the right to obstruct lawful, just associations because of fear of their power. On the other hand, every individual and every society has the right of defence and guarantee relative to all individuals who want to associate, and to all existing associations. These rights of defence and guarantee can be freely exercised according to the rules already laid down (cf. RI, 1832-1900).

439. Every human being has, therefore, by nature a right to associate with his fellows. The right to freedom of association is founded in human nature.

440. But does it follow that individuals and societies, who cannot jurally impede the formation of a society by other individuals, must recognise these new societies? Or can they recognise them or refuse recognition just as they please? By `not recognising them' I mean considering them as non-existent and treating the individuals who compose them as though they were simply single, unassociated persons.
Every society, having the right to exist, has equally the right to be recognised. Other individuals and societies, which cannot block their existence at will, cannot at will refuse to recognise them.

441. The association of which we are speaking is a jural fact, and must be recognised in the same way as all other jural facts (cf. RI, 287-290). Let us imagine, for example, that Harry buys a house from Tom. This is a jural fact and has to be recognised by everyone. Others, as soon as they come to know about the sale, are obliged to recognise Harry as the owner of the house and respect him as such. It is not within their power to refuse recognition of the contract; there is a universal obligation to recognise facts for what they are and according to their natural value. Human beings have no power to eliminate these facts, nor make them other than they are. Anyone who knew about the contract, but still wanted to act as though it were non-existent, and continued to recognise Tom as the owner of the house, would be injuring the rights of Harry, who could use force to make his rights prevail. Tom, let us say, is a trickster who still wants to act as the owner of the house he has sold and for which he has received the price. Can other people support Tom's effrontery by recognising him as the owner and taking rooms in the house either gratis or for rent? They could indeed if they had the power not to recognise the contract of sale. But they are obliged to recognise the jural facts for what they are, and can no longer treat Tom as though he were the owner of the house without harming the rights of Harry, the true owner.

442. Let us apply this solution to the jural fact of association. As a result of this fact, the associated individuals have acquired reciprocal obligations and rights. Just as the contract of sale must be recognised by all as soon as they know about it (even though they are not the contracting parties), so the contract of society must be recognised by all (even though they are outside the society). Everyone must recognise the rights and obligations which result from the jural fact of the contract of sale, and everyone must in the same way recognise the rights and obligations that result from the jural fact of association. If, therefore, some individuals lawfully associate, all other individuals and societies must recognise and treat such associates not only as single persons, but also as associated persons who must be respected and left totally unharmed in the rights they have acquired as a result of the social contract they have established between themselves.

443. The only condition required for the recognition of new, lawful societies by individuals and other societies is that they come to know these societies have been formed. This is the same condition required to activate the obligation of recognition in the case of every other jural fact; it is an obvious condition because it renders the recognition possible.

444. Consequently, the social contract has the right to be recognised without its being positively approved or even notified. It is sufficient that it comes to be known to others in any way whatsoever. This is exactly what happens in the case of a contract of sale: the contracting parties are not obliged to notify other people about the contract, although others are obliged to respect it as soon as they come to know about it for themselves.

445. The matter can also be considered from the point of view of the right of guarantee. It could indeed happen that a society or even an individual may claim that certain persons give notice of the society they intend to form. This requirement must not be arbitrary, however, but truly result from the right of guarantee whose limits we have already described.

446. We have, therefore, a right to freedom of association and a right to social recognition. These two rights give rise to a third, which I call the right to social ownership. By this I mean the right of every just society to acquire and preserve rights of ownership.

447. Two propositions prove the existence of this right:
1. Association is a right of nature which must be recognised and respected by all.
2. There is nothing in the nature of the right of ownership which prevents its being inherent to a society rather than an individual.

448. The second proposition should be considered in the light of what has been said about the respect due to every right, whichever subject retains it (cf. RI, 1647-1660). Right, wherever it exists, is inviolable. But the right of ownership is present whenever the fact constituting the title to ownership comes into existence (cf. RI, 287, 296, 313, 343). This title can be placed in existence by an individual and by a society of individuals. It must, therefore, be respected even when posited by any society whatsoever. Every just society has of its nature the right to possess, unless it renounces it.

449. Consideration of the first proposition, which has already been demonstrated, leads to the same conclusion. We have already seen that everyone must recognise lawful societies, and the rights and obligations which accrue to the persons of the members. Granted this, the associates may then pool their present or future ownership and contract reciprocal obligations about the way they dispose of this ownership. If so, all this must be recognised by everyone, even outsiders. The right of ownership permits individuals who are its subjects to divide, split, limit and place it in communion, etc. (cf. RI, 972-1003). Anyone claiming to prevent owners from placing their goods in communion or binding themselves to certain conditions about the disposal of what is theirs would harm the full right of ownership which we presume present in these individuals. The obligation to leave free exercise of this right to the subject possessing it binds societies, individuals and civil society itself.

450. Clearly, any convention about the duration of a society made during its foundation by the members will have to be observed in the same way as other conventions.

451. The same must be said if the duration of the society is determined by its end. This would be the case if a single, indivisible end could only be attained within a certain time. The members are tacitly obliged to remain united for that period of time, and no longer, even if they have made no explicit convention.(94)

452. Although a member cannot leave in these cases without a motive, is there any just motive for him to do so? A member can withdraw from a society before the time has elapsed in the following cases:
1. If there is no hope, for whatever reason, that the end of the society can be achieved.
2. If the fundamental pacts, or the conditions attached to the obligation undertaken, have been rendered impossible.
3. If the nature of the society has, for any cause, undergone an essential change from what it was.
4. If the member has been offended or harmed in his rights by the entire society, and cannot defend them except by leaving.
5. A distinction has to be made if a member is either rendered incapable of carrying out his social duties, or has culpably neglected to do so and cannot be forced to carry them out. The incapacity and defect of that member could change the society in its essence, or make it harmful rather than advantageous to another member who may be thinking of leaving. On the other hand, the negligence of the member may not produce the effect of noticeably altering the social condition. In the first case, where the negligent member cannot be constrained to do his duty by any other means, the injured member could leave; in the second, he could not. If it is true that the convention uniting the society concerned a certain number of members of whom only one is negligent about his obligations, the society, although materially changed, has undergone formal change only in the circumstances described in the first case. It seems, therefore, that the remaining members must either agree to dissolve the society, or prolong its existence until it naturally comes to an end.(95)

453. I also said that one of the members who neglected his duty to the extent of damaging or changing the nature of the society would not give rise to a just motive for departure by another member if the offender could be made to do his duty in some other way. This limitation needs to be considered carefully. It is a fact that all the members have the right that each of them stay in the society for the established time. The right of the innocent members would not be respected, therefore, when a reason for departure could be removed in some other way.

454. Finally, we must note that every member can always and at any moment leave a society in which he is obliged to remain, provided he gives sufficient compensation or recompense to each of his fellow members to indemnify fully for all the damage his withdrawal could cause them. In this way he does not deprive them of the value of their own right, but simply changes its modality, a possibility open to anyone as a result of his right to jural claim.

455. Members belonging to societies whose duration is not fixed by convention nor by the end are free to leave when they want, provided they do so in the proper way.(96)

456. This right to leave the society is present, as civil legislators normally hold, when individuals relinquish membership without deceit and without undue haste.

457. The French code, followed by several Italian codes, explains these two conditions as follows:
Renunciation of membership is not in good faith when the member leaves in order to appropriate for himself in particular the profit that the members intended to obtain in common.
It is done in undue haste when things are no longer as they should be, and the society's interest requires that the dissolution should be postponed.(97)

458. A member can be excluded from a society without fault on his part, or through his own fault. He is excluded without fault on his part when he becomes incapable of fulfilling the essential obligations connected with his quality as member of the society. He is excluded through his own fault when he refuses to do his duty, that is, to fulfil the obligations connected with his quality as member.(98)

459. In the first case, where the member is incapable of sustaining his social obligations, but is innocent of any fault, he must be excluded with sufficient care to prevent any harm to him from the exclusion.

460. If some interested member asks that another, capable of fulfilling his social obligations but negligent in doing so, be constrained to fulfil them rather than be excluded, and the society could do this without harm to itself, the society should accept this member's opinion. `Every member has the right to require that all the others remain in the society.'
We have seen in the previous article (cf. 452-454) whether the exclusion of a member from a society provides a just reason for others to leave.

461. Clearly, the social bond does not pass to one's heirs if it has been agreed that the society is formed solely by the living members.

462. `However, heirs by whom the society is not carried on have the right to sight and settlement of the accounts up to the death of the member.'(99) They also have the duty to render and complete their own accounts with the society.

463. However, this reciprocal rendering of accounts and the severance of social relationships must be done without harm to the society and the heir. If this cannot be done in any other way, the parties must make a reciprocal agreement to postpone the matter.(100)

464. If no convention has been made about the duration of the society, its nature and end must be examined. If the examination shows that the society has a tacitly determined duration, the heir who accepts the inheritance, and can act as a member of the society, must undertake all the rights and duties of the deceased until this duration has elapsed.

465. There is no reason, according to social Right, why this obligation should be limited to the first heir or to the heir of the heir. All successive heirs remain equally obliged during this period.

466. Nevertheless, the nominated heir remains completely free of the society if he does not accept the inheritance.

467. Equally, the heir (as we have seen for all the members) can leave the society in which he is obliged to remain provided that he indemnifies his fellow members and obtains their consent (cf. 454).

468. He can also leave if it is clear from the nature of the society that the society enrolled the deceased member on account of personal qualities or abilities which are lacking in the heir himself. Indeed, if the heir is not suitable as a member of the society, he is justly excluded.

469. The same must be said if other circumstances make it reasonable to presume that the associates intended the society to be composed of the first members, and not the heirs.

470. Finally, it is clear that if the society is of such a nature that every member can leave at will (cf. 455), the heir also can leave.

471. Civil laws which do not recognise that social duties and obligations may be inherited, in accordance with the limits I have described, are not derived from simple jural-social Right, but pertain rather to politico-social Right.(101)

472. Societies cease:

1. When the time for which they were instituted expires.
2. When their end has been fully attained.
3. When their existence has been rendered impossible either through the death of the members, of whom only one survives; or through the loss of the common capital;(102) or because the aim of the societies has been rendered or found to be unattainable; or for any other obstacle that prevents the society from continuing with some hope of reaching its end.(103)
4. When the essential conditions of the society are changed, either through the will of the members or by chance.(104)

473. The following questions can now be answered:

1. Is a society dissolved if a member does not contribute what he has promised?
Yes, if this deficiency alters the essential conditions of the society, if it obstructs the end or renders it of such doubtful value that union with other people is not suitable; otherwise, no.(105)

474. 2. Is the society dissolved if a member dies or leaves?
The Austrian civil code, in accordance with jural reason, resolves the matter as follows: `When a society consists of two persons only, and one of them dies, the society is dissolved. When it consists of more than two persons, it is presumed that the other members wish the society to continue. This general presumption is also effective in the case of heirs of business people.'(106)

475. Does the social bond cease through the death or departure from the society of one of the members, particularly when the deceased or departing member is so important that loss of his membership proves disadvantageous to one of the members?
This question also is resolved by Austrian legislation. `A person can renounce the contract of society prior to its end if the member on whom the management of affairs depends dies or leaves the society.'(107)

Notes

(90) The rights and duties of the individuals who compose a society have to be divided into two classes: 1. rights and duties proper to individuals which are not the result of their quality as members (extrasocial rights and duties); 2. rights and duties that originate from the individuals' quality as members (social rights and duties).
The second kind of rights and duties are further divided according to the variety of persons to whom they refer. Thus we have: 1) reciprocal rights and duties amongst the members; 2) rights and duties of the members towards the society; 3) rights and duties of the members towards the government of the society.

(91) For example, the following conclusion is an evident consequence of the right of ownership which each member has over what he has put in communion: `The rights and obligations which regard the society as a whole, but not the individuals' goods, pertain pro rata to the members.' Hence, `if a member is sought for a social debt, his obligation extends only as far as the quota he contributed.' Article 1863 of the French code seems to deviate from this principle when it affirms: `Members are obliged towards the creditor with whom they have a contract. Each member is obliged for an equal sum and portion, even if one of them has a lesser share in the society, unless the contract has specifically restricted the obligation of this member in proportion to his share.' Imposing the obligation that the contract explicitly express the obligation of a member having a smaller share in communion pertains to politico-social right, not to jural-social right. According to politico-social right, it would have been sufficient to have made known and proved to the person making the loan that the members making the contract were duly representative of the entire society. It would be just for this declaration to be inserted into the contract, and for all the members to be obliged consequently in proportion to their quota. But without this declaration, the contract should be considered as made, not by the members of a society, but only by certain individuals for all of whom the obligation would certainly be equal.

(92) ER, 88.

(93) The Catholic Church, for example, can forbid its subjects from joining all associations which it judges prejudicial to morality and religion. In any case, no one has a right to enrol in such associations.

(94) Can a member withdraw from societies whose obligatory end requires obligatory membership? We need to distinguish. The obligation of the social end and of membership may be only moral, or moral and jural. It would be moral only if refusal to join, or departure from, the society did no harm to fellow members. This would be the case if a society were necessary for me to lead a decent life. I would have to join it because it would be a necessary, subjective means for me to lead a good life. It would be a jural obligation if others were harmed in their rights by my refusal to join or remain in the association - if, for example, I refused to recognise my co-heirs and share the common inheritance with them, or if I offended some right acquired by them as a result of a convention, or contract, etc. In this case, the members have a right to claim that I join or remain in the society, and could oblige me to do so by force if I left. In the case of moral obligation, I sin, but do not exercise an absolute right. Nevertheless, because the members have no right to constrain me to remain with them, I exercise a right relative to them by leaving the society (Cf. ER, 326-327).

(95) `No member can, without just motives, ask for the dissolution of a society contracted for a determined time before the expiration of the period. Examples of just motives are: neglect of obligations on the part of a member; chronic illness making him incapable of social affairs; or similar cases, whose lawfulness and seriousness are left to the prudent decision of the judge' (French code, art. 1871; cf. Albertine code, art. 1894).

(96) `If the duration of the society was not expressly established, and cannot be determined by the nature of the case, each member may lawfully renounce membership when he wishes, provided he does not do so deceitfully or over-hastily' (Austrian civil code, §1212. Cf. also §830).

(97) Art. 1870 - Albertine code, art. 1893 - Code of the Canton Ticino, art. 918.

(98) `A member can be excluded from the society before completion of the term if he does not carry out the essential conditions of the contract; if his goods are subjext to compulsory expropriation; if he is declared judicially a spendthrift; and in general if he is placed in care; or if he loses the trust of others for any crime' (Austrian civil code, 1220). - This paragraph obviously deals with business societies. It remains to be seen if the person in care could be represented before the society by his custodian. I think that rational Right would have to require this because social Right allows every member to be represented by another. Equally, according to rational Right, a crime extraneous to social affairs would be insufficient for exclusion from a society.

(99) Austrian civil code, §1206.

(100) Cf. Austrian civil code, §830.

(101) According to the French code: `If it has been stipulated that the society must continue in the heir when one of the members dies, or that it has to continue solely with the surviving members, such dispositions have to be followed' (Art. 1868. - Likewise the Albertine code, art. 1891, and the code of the Canton Ticino, art. 916). `Normally, social rights and obligations are not passed to the heirs of the member' (Austrian civil code, §1206). - `If the society contracted between non-business persons expressly includes their heirs, the heirs are held to observe the will of the deceased, if they accept the inheritance. This will, however, does not extend to the heirs of the heirs, and still less has it the force to constitute a perpetual society' (§1208. Cf. paragraphs 831, 852, 1209).

(102) `Members cannot be forced to contribute more that they promised. But if, through changed circumstances, the social aim cannot be attained without increasing the contribution, the member who refuses to comply can leave the society or be removed' (§1189).

(103) `The society ceases of itself when the business undertaken is finished, or cannot be continued; when the entire common capital has been lost; or when the time established for the duration of the society has elapsed' (§1205).

(104) `Society is composed of persons, things, will and activity. It would seem to be dissolved, therefore, whenever any one of these ceases' (Ulpian, Digest. 17, 2: 63).

(105) Hence the following French law has its source in part from political reason: `When one of the members has promised to put in communion his ownership of something which perishes before its actual contribution, the society is dissolved relative to all the members. The society is equally dissolved in every case involving loss of the thing when its enjoyment alone has been placed in communion, while its ownership remains with the member. But the society is not dissolved through the loss of the thing when its ownership has been conferred on the society' (Art. 1867. - Cf. Albertine code, art. 1890).

(106) §1207. - Here French legislation again distances itself considerably from jural reason to follow political reason. It states that the society is dissolved through the death of one of the members unless the contrary has been stipulated (cf. art. 1865, 1868). - Cf. the Albertine code, art. 1888, 1891.

(107) §1211.

Conclusion

Home