Society And its Purpose
Book 1 - Society
CHAPTER 11
Extra-social right
135. Besides social right, we have extra-social right which must not be overlooked. The natural right of members of a society when the society actually exists gives rise to extra-social right.
To understand this, we have to reflect that a human being does not and cannot cease to be a human being when he becomes a member of some company. He truly possesses inalienable rights, inherent to human dignity, such as the right to act virtuously, not to be forced to take part in indecent acts, and so on. This part of natural right is not absorbed by any association. Consequently, no one puts the whole of himself into any society with his fellows, even civil society. He always reserves something for himself, something which remains outside his membership and places him in the state of nature.
There are, therefore, two parts, as it were, in a person who associates with his fellow-human beings: that which makes him a social being, and that which makes him extra-social. These two parts, which must be carefully distinguished in all human beings born in society, are the foundation of the two kinds of right we have distinguished: social and extra-social right.
136. It is true that publicists have not made great use of our term extra-social right. Nevertheless, in speaking about the limits to which civil law has to be subjected they have always acknowledged the substance of this right. For example, the soundest amongst them agree that religion is outside the sphere of civil government. Let me illustrate the point by reference to Romagnosi:
| We must note that the relationships between human beings and
the Divinity are of themselves universal, invisible, personal to
every individual, and independent of every human authority. First, they
are universal. Whatever position creatures hold, and wherever they find
themselves, creatures are under the dominion of the creator; relationships
between them are therefore universal. Second, these relationships are
invisible. God is invisible; the inner man is also invisible; but
essential, religious relationships are present between God and the inner man,
as the definition of religion makes clear. Hence, the relationships between
human beings and the Divinity are invisible. Third, these relationships are
personal to each individual. Whether we are dealing with a single
individual or with many individuals, united or isolated, religious
relationships always affect the individual human being. They are, therefore,
personal. An offence on the part of many cannot justify an offence committed by an individual; responsibility before God is always personal. Fourth, I maintain that religious relationships are independent of all human authority. In fact, as long as the whole of mankind is incapable both of withdrawing itself from the omnipotence of the Creator and of adding a single millimetre to its own height, human authority can never rule in the place of truly religious relationships, which will always be essentially independent of it. Political jurisdiction, therefore, can only be exacted relative to external things which, through human institution or the external exercise of religion, are made to serve some common gathering or society.(38) The second motive which I have mentioned as limiting social or political authority was said to arise from rights native to human beings and citizens. Here we have to consider the attitudes towards authority which result from these primitive rights. Religion forms part of the moral individual’s ownership. It must, therefore, enjoy the independence and primitive freedom that forms the justice proper to the social contract. Freedom of opinion and of conscience is a right as sacred as that of ownership, life and fortune. If we then go on to consider the importance and power of religious feeling, we find that it constitutes a good of the highest order for human beings. It also arouses such feelings that politics would never be able to overthrow it forcibly; indeed, the only result of any attempted usurpation would be to provoke the dissolution of social order through the tyrannical exercise of power. Everyone knows that the moral feeling proper to religion is more robust, sensitive, and independent than any other. The clearest, most constant and universal proof of this are the things done and endured for the sake of religion, and recorded in the annals ancient and modern of every sect. It is obvious that people consider religion as their most precious property.(39) |
Publicists admit, therefore, that some things are excluded from the right proper to civil society. We have to grant the existence of some right other than social right. The existence of these two rights explains the presence of questions with two different aspects and two solutions. Resolving them with the principles either of social or of extra-social right gives rise to a twofold result.
137. There was a time when social right, together with the right of seigniory with which it was confused, was considered almost the only right, and prevailed. It was used to resolve the most important questions about human communal living. Interested parties took it to such absurd excesses, however, that common sense was shaken and left disdainful. Modern times have seen a reaction, although those whose interests led in other directions went to the opposite extreme by extending extra-social right erroneously and beyond all bounds.
Count De Maistre, in maintaining the natural infallibility of the sovereign,(40) states a truth according to social right. This principle, because admitted in the French constitution, has to be considered in France as a political enactment also. Thus, the infallibility of the king of France has become a political-social right, that is, a right which draws its origin not only from the nature of society, but also from a national, positive agreement.
The question of the infallibility of the sovereign is not altogether distinct from the following query: `Can the society or its members indict and depose the head of a society?’(41) Clearly, according to social right, a negative answer is required. The teachings of the University of Oxford in 1630,(42) which spread throughout Europe, are deducted from the principles of social right.
138. Exaggerated social right and total neglect of extra-social right produced two errors: 1. social positivism and 2. legalism. By social positivism I mean the doctrine that acknowledges only positive laws emanating from the legislative power of society; by legalism, the doctrine making the value of all laws consist in the external forms constituting legality. The two errors are closely related and are found in all political parties favouring monarchy and democracy. There is, in fact, no difference between the error of those who wish to deduce all laws from the will of the head of society (a rege lex) and of others who want to acknowledge only the popular will as the fount of laws.(43) It is necessary to ascend much higher than human will and any human society to discover the fount of laws which oblige human beings. The source of these laws can only be divine, that is, the eternal reason and God.
The mistake of those who exaggerate social right to the destruction of extra-social right inevitably produces absolutism, just as the mistake of those who exaggerate extra-social right to the destruction of social right inevitably produces ultra-liberalism and anarchy.
139. I have already noted that social positivism and legalism were brought to extreme conditions by Protestantism.(44) It is not surprising, therefore, that schools with their roots in the Reformation propounded the most blatant absolutism.
140. A recent author,(45) an historian of moral and political doctrines, distinguished for his freedom of thought and consequently impartial in the matter, wrote as follows:
Temporal power is absolute! It absorbs all rights, even those of making laws. It absorbs all freedom, even that of violating liberties. Generally speaking, the German schools are fairly moderate in their teachings: the political theory derived from sacred Scripture by Johannes Althusius(46) contain only the principles of Bossuet’s work on the same subject. However, the teaching, contrary to the nature of things, does attribute to rulers authority in sacred matters. This is characteristic of Protestant political theory, and is found in the teaching of all the schools of the Reformation. An examination of the manuals left by this school are sufficient verification of this. The greatest excesses of the ecclesiastical political theory of Protestantism were found in the English schools under Elizabeth and James I. Oriental teaching and Castilian ambition certainly provide us with more pompous expressions of monarchical omnipotence, but neither of them ever taught anything so positive, clear cut and absolute or gave a more sacred, inviolable foundation to royal authority. Raleigh dedicated his book to the king (James I), and professed in the dedication: `The bonds attaching subjects to their king must always be made of iron; those attaching the king to his subjects must be like spiders’ webs. Every law which for reasons of self-interest binds a king, also makes lawful its violation by the king’.(47) |
The last word on this teaching is found in Hobbes’ theory where social right is exaggerated to such an extent that `he subordinated humanity to society’, as our author justly notes.(48)
These doctrines were preceded and followed, as we said, by others which offended by going to the opposite extreme. Like every other political teaching, these also claimed some foundation in the principles of justice, without which they had no chance of success. They attempted to take root in extra-social right, which they enlarged without restraint. The result was not extra-social right, but anti-social right. Those who proposed extra-social right to the detriment of social right were enemies of the monarchical form of government rather than of absolutism. Their own confusion of ideas hid this from them, however. In England they were called monarchomachists, that is, monarchy-haters. More recently in France, during the never-to-be-forgotten revolution, they were called revolutionaries, anarchists, ultra-liberals and so on.
141. Social and extra-social right have, therefore, to be reconciled. They are not contradictory or inimical to one another. Each tempers the other by enclosing it within just limits. In this way they perfect, not harm one another. In a word they are, properly speaking, only two parts of a single, complete right which can be defined as `the right of human beings in society, which springs partly from human nature, which is essentially individual, and partly from the fact of society.’
Notes
(38) Catholics believe that some external things, such as the Sacraments instituted by Jesus Christ, are established by God as part of religion. They believe, moreover, as a dogma, that the Church has received from Jesus Christ the power to make laws and to have them observed. This power is contained in the words: `He who hears you, hears me.' Catholics, therefore, when united to form civil society, cannot acknowledge in the government of their society any power of derogation over the laws of the Church or its ordinances. In fact, the government of civil society can never have more power than that of the members who unite to form it. These members, as Catholics, profess their submission, as I said, to the laws of the Church, laws to which they are never superior.
(39) Assunto primo della Scienza del diritto naturale, §36. — The limits of human positive law are dealt with in §30–36, which should be read. — Elsewhere we shall indicate how we differ from Romagnosi in assigning these limits.
(40) Du Pape, bk. 1, c. 1.
(41) By `head of a society' is understood the person to whom the right and duty of governing was attributed at the foundation of the society. This task is regarded as his social contribution.
(42) Cf. Wood, History of the University of Oxford, vol. 2, p. 341. — The University of Oxford required from its doctoral candidates an oath against entertaining ideas of social doctrine contrary to those of the University. Before this, several authors in the preceding century had taught the same doctrine. Nicholas Hemmingsen, for example, published his Apodictica methodus de lege naturae at Leipzig in 1562. — Amongst the many English authors who wrote in the following century, Barklay deserves to be mentioned. He published De regno et regia potestate, bks. 1–6, at Paris in the same year as the birth of Charles I. — In 1605, Alberico Gentili published his treatise, De potestate principis absoluta et de vi civium in principes semper injusta. — These questions, which are extremely difficult to solve with the principles of simple rational right, are answered fully and sublimely by the supernatural principles of the Gospel.
(43) Note that the question of the forms of government is to be distinguished totally from that of absolutism and liberalism. It is a mistake to confuse such different questions. We can see this by reflecting that the most extreme absolutism may be found in any democracy whatsoever. In fact, the principle of absolutism consists in admitting the sovereign will as the unique, supreme fount of laws. It is indifferent in this case if the ruler is an individual, several persons or the whole people. — Friedrich Jarcke's article on absolutism and liberalism deserves to be read on this point. Cf. Berliner Politischer Wochenblatt, 1835.
(44) Cf Storia comparativa e critica de' sistemi morali (vol. 12 of my collected works, p. 268 ss.). — The great Hugo Grotius must be distinguished from other Protestant writers in this respect. He was able to avoid the error common to his contemporary co-religionists who reduced all law to positive law, which they made the source of obligation to authority (cf. De jure B. et P., §11, proleg.). Heinecke reproves Grotius, to whom he was greatly inferior, for this great error, as he calls it. `Here', he says, `reason abandoned the great man' (Recitationes in Elem. juris civ., bk. 1, tit. 2, §40). — I have shown that Protestantism passed through two periods during which it moved from one extreme to another. In the first period, authority held sway, in the second, individual reason. The movement is easily explained. First, Protestantism shook off the authority of the Church by submitting entirely to that of Scripture. This, however, had no solid foundation. Scripture, left without an authoritative interpreter, was a dead letter. Soon the authority of Scripture was also rejected. An historian of the moral and political teaching of the last three centuries makes the following wise comment: `It has been said, and is repeated daily, that rationalism or reasoning became part of the social state and part of moral and political teaching along with the principles laid down in 1517. This was wrong, and is wrong by two centuries. Rationalism was not the aim of one side or the other in 1517' (Matter, Troisième période, c. 1).
(45) M. J. Matter, Histoire des doctrines morales et politiques des trois derniers siècles, Troisième période, c. 6.
(46) Herborn, 1603.
(47) This is not new. It was taught
long ago, and neatly compressed in Plautus' words:
`Every pact a non-pact; every non-pact a pact.'
(48) M. J. Matter, Histoire des doctrines morales et politiques des trois derniers siècles, Cinquième période, c. 1. — Speaking of the propensity shown by Catholics in the United States towards democracy, Tocqueville concludes his observations as follows: `Catholicism may dispose the faithful to obedience, but does not prepare them for inequality. The opposite is true of Protestantism, which, generally speaking, draws people much less to equality than to independence' (De la démocratie en Amérique, t. 2, c. 9). — One of the most harmful modern errors is that which confuses obedience with servitude. I have distinguished the two ideas in c. 9.