Society And its Purpose
Book 1 - Society
CHAPTER 10
Social right
132. As we have seen, the order or differences between members in a society springs from the intimate nature of the society. Social order gives rise to social right,(35) which we have distinguished from the right of nature. The latter deals with rights possible between human beings without reference to any social bond.(36) All we have discussed so far shows that social right is made up of two parts.
133. One of these parts determines the rights and duties of the individual members composing the society; the other determines the rights and duties of the government of the society, of the members and of the society itself relative to the government. The first part is rightly called, private social right; the second, public social right. We could also call them internal and external social right. I use `external’ because governmental functions are of their nature outside society, as we have seen.(37) The second part of social right must also deal with the titles that any person, family or moral body has or can have relative to the government of a given society, or with any of the three governmental offices we have indicated previously, that is, administrator, judge and chief of social enforcement.
We have seen that the persons in charge of these offices are not necessarily members of the society itself, although they can be and may posit as their social contribution the work they do to fulfil offices necessary to society. Clearly such persons cannot be deprived of their posts if this was agreed at the establishment of the society, although they can be forced to fulfil them in accordance with their duty. Moreover, without the consent of the other members, these officers cannot renounce their posts for the duration of the society. In cases like these, they would possess a title giving them the right to occupy those posts and to maintain their governmental offices.
134. It is the task of external social right to determine the nature and number of these titles, which are obviously divided into natural and acquired. Natural titles, by which a person can be invested with the government of a society, consist in some action by this person which gives rise to the existence of the members who form the society. There are two principal titles of this kind, creation and generation. Universal society, of which the Creator is head and human beings members, is founded on the title of creation; family society is founded on the title of generation. Acquired titles, other than agreements and pacts, are reduced to benevolence on the part of some person with seigniory over many others, whom he governs as though they formed a society with him. The social bond is thus established between them and him. Previously, the only bond between them was that of ownership and dominion.
External social right also has the task of offering solutions to doubts that arise about the quality of the person invested with such rights, about the conditions of investiture, the transmission of rights, substitutions, successions, and the possibility of the division and modification of rights, etc.
Notes
(35) Civil right, as the Romans called it, was a part of social right because it regulated the faculties and prerogatives of Roman citizens. — The right of nations was distinct from natural right which presumed the existence of the right or faculty, attributed to every individual, of satisfying his natural needs and instincts, irrespective of his relationship with similar beings. The right of nations, on the other hand, involved relationship with other human beings. This right was also distinguished from civil right, which regulated relationships between people belonging to the same civil society (civitas). The right of nations ordered relationships between people who did not belong to the same civil society. Hence the words of the Digest: `Under the right of nations wars are begun, peoples are separated, kingdoms founded, dominions kept distinct; limits are placed to property, building sites determined, business, buying and selling, conductio, obligations are carried out, with the exception of certain things which come under civil right' (bk. 5, t. 1).
(36) Chap. 4.
(37) The relationship of one society with another does not pertain to social right because the two independent societies are in the state of nature. In the right of nature, therefore, we should distinguish one part devoted to determining the faculties and relationships of individuals who do not form any society, and another which determines the relationships between an individual and a society of which he is not a member, or between two distinct societies. Sometimes the relationships between an individual and a society, or between two societies, are identical with those of two unassociated individuals; sometimes new cases are presented which cannot be resolved on the sole basis of principles determining individual relationships. Treaties on natural right must, therefore, distinguish the part that regards individuals from that which contains the applications of the same principles to the relationships concerned with moral bodies.