ART. I. -- NATURE OF CIVIL SOCIETY.
70. Civil society is the permanent union of independent families associated to enjoy in common the same rights and privileges. -- Man does not find in the family complete satisfaction of his wants. He needs a more extended society comprising the family itself, in which he may find the necessary assistance to enable him to attain the perfection proper to his nature. This union of families is called civil society, or if viewed in relation to the ruling power, political society.
ART. II. -- THE SOCIAL STATE IN RELATION TO MAN.
71. The social state is natural to man. -- 1. This truth is proved by history, which teaches that in all times and in all places men have lived in society; now, so universal a fact must be due to a law of nature. 2. Unlike the brute, man is not equipped by nature with all that is necessary for the preservation and development of his being; it is only society that can satisfy his physical, intellectual, and moral needs. 3. Man is naturally endowed with the faculty of language, but this faculty would be useless were men not called to live in society. 4. Man is naturally inclined to communicate with his kind, to share their sentiments, and to help them in need. 5. Man is naturally perfectible; now, it is manifest that without society he cannot attain the perfection of which he is capable, particularly in the intellectual and the moral order. 6. Reason bids man realize, as far as in him lies, the good of order; now order, both in the culture of science and the practice of virtue, is most resplendent in society.
72. It is absurd to say with Hobbes that the natural date of man is perpetual war, and that men united in society only to free themselves from this state. -- The social system of Hobbes is a consequence of his materialistic principles touching the nature of man. Were his system true, we must necessarily grant that man is inferior to brutes, which are never seen in strife with those of the same species. But experience proves that man is inclined to show benevolence to his neighbor, unless his passions have perverted his instincts; again, reason bids us keep order. Order is manifestly peace and not war. The falsity of Hobbes's system is also proved by its fatal moral and social consequences; for it legalizes all crime and despotism.
73. The opinion of Rousseau, that man is anti-social, and that by force of circumstances he passes from the savage to the social state, is false. -- This theory is based on an absurd hypothesis. (1) Nowhere has man lived in the solitary and savage state. (2) Rousseau affirms that man is born good, that he is endowed by nature with sensitive faculties and with liberty,{1} and that society depraves him by giving him the use of reason and the development of intelligence; but these are absurdities so manifest that it is needless to refute them. (3) The hypothesis of the compact makes society impossible; for how could men in the savage state have the notions necessary to comprehend the nature of the social state and realize it by the help of a contract? (4) This contract would be without force; whence it follows that men would be free to break it when it seemed good to them.
ART. III. -- THE PRIMITIVE FACT THAT REDUCES TO ACT THE NATURAL SOCIABILITY OF MAN.
474. By the very fact of his existence man is constituted in society. -- Since men have the same end, the same law, they form a universal society under the authority of God. Yet this society is too general, too abstract; individuals need for the satisfaction of their wants a less extensive society, having a visible sanction and a positive form. This society is civil society.
75. The natural and primitive fact that gives rise to civil society is the multiplication of families coming from the same stock. -- The causes which actually produce a political association vary according to time, place, and person. In one place it may be a contract between several families of different origin; again, it may result from the domination of some powerful man. But these are fortuitous and variable events. The fact which naturally gives rise to civil society is the multiplication of families coming from a common source. For as families are multiplied, their homes must also be multiplied; as new relations are established, the city is formed, and with it civil society is constituted, at least in its essentials.
ART. IV. -- END OF CIVIL SOCIETY.
76. The end of civil society is the common external good, regulated so as to procure the individual internal good of all the members, and subordinated to their last end. -- Nature always furnishes the means to fulfil the duties which she imposes; but she does not give society the means to know and to act directly upon the interior; therefore society can procure only the common external good of its members. But this is a good only so far as it is a means of arriving at their internal good and future good. Therefore society ought to procure their external good so as to facilitate the acquisition of their internal and future good. When it is said that society should pursue a common good, such a good must be understood as may be shared by all the members of the society. Social justice would be violated if even one member were excluded from participating in the common good.{2}
77. It is an error to hold with Kant that the end of political society is the reciprocal limitation and harmony of the liberty of its members. -- This principle, which is only a consequence of the theories of rationalism on the native independence of man, is false, because it gives society rather a negative than a positive end, and leads directly to egotism and despotism. 1. For if society is limited to preventing any one from using his liberty to the detriment of that enjoyed by others, it will not unite individual forces for the pursuit of a common good, and each one will act in isolation from the others; or if it unites its forces for the pursuit of a determinate good, it can do so only by the help of a despotic power. 2. The principle of Kant, besides, results in the ruin of public morality and in indifferentism of the State in religious matters; for many crimes, such as blasphemy, suicide, etc., etc., do not encroach upon the liberty of others, and to prescribe a public profession of faith would be to restrain the liberty of each one more than is demanded by respect for the liberty of others. Besides, though liberty in the abstract is not limited, yet in the concrete it is limited both by its object, whose order and end it may not change, and by the duties of the person who is to exercise liberty.{3}
ART. V. -- ELEMENTS OF CIVIL SOCIETY.
78. The essential elements of society are multitude and authority, i.e., subjects and superiors. -- Society forms a moral body; but in every body there must be the members that compose it and the principle that unites them. In the social body, the members are the persons that enter into it; they are called the multitude; the principle which produces unity and order among these members is authority.{4} Multitude and authority considered in the concrete are the subjects and superiors.
79. The social multitude results proximately from the family, not from the individual. -- Rousseau, basing his statement on the hypothesis of the state of nature and on the social contract, conceived society to be a union of individuals, and not of families. This assertion is contrary to the progress of nature, which passing from the imperfect to the perfect, first gives birth to domestic society and then produces civil society. Domestic rights are anterior to civil rights; they are more restricted, more indissoluble. Civil society is bound to protect them, but it cannot modify them. Since, then, individuals belong to the family before they become members of civil society, they form civil society only inasmuch as they are already constituted in the family. Besides, the laws are here in accord with reason, since they admit the child to the full enjoyment of his civil rights only when he has attained his majority and has thus passed from domestic to civil society.
80. We natural constitution of society should be organic and not mechanical. -- Society is a whole whose parts are not inert beings having only the artificial movements imparted to the whole, but intelligent and free beings, each with his own activity and end. And not only of individuals severally is it true that they have their own life and activity, but also of particular associations entering into civil society, such as industrial or scientific unions, and especially those which originate in the family. Therefore the constitution of society should be organic. Hence it is easily seen how contrary to the order of nature is that exaggerated centralism which robs individuals and societies of all spontaneity, and makes all social activity proceed from a single principle.
ART. VI -- NATURE OF CIVIL AUTHORITY.
81. Civil authority is the moral power, one and independent, to direct the actions of the citizens to the common good. -- 1. The civil authority is called moral to distinguish it from purely physical force, and also to mark the fact that it is founded in the rational order of things. 2. This authority should be one, otherwise it would not establish unity and order in the social body. Nevertheless, this unity of authority does not exclude a multiplicity of instruments by which the authority functions; thus, under the supreme head, there are ministers, magistrates, officers, etc. 3. The civil authority should be independent; if it were dependent on those whom it governs, it could not direct them toward the common end. But this independence of authority does not imply that it be unlimited; it is necessarily subjected to the moral order and circumscribed in its sphere of action by its proper object. 4. The authority should direct the actions of the subjects toward the common good. Yet, as in the man clothed with public authority we must distinguish the individual from the authority with which he is vested, it is certain that this individual as such can also seek his particular good.
ART. VII. -- ORIGIN OF CIVIL AUTHORITY.
82. Civil authority in itself proceeds directly from God. -- Civil society is natural to man, and authority is an essential element of this society. Therefore supreme power is a right proceeding from nature itself. But what proceeds from nature has God for its immediate author; therefore supreme power in society proceeds immediately from God. Besides, in virtue of the natural law, God wills the maintenance and observance of order. But order is maintained in society only by authority. Therefore authority is willed by God and proceeds directly from Him.
83. The cause that primarily determines the subject of supreme power is accidentally the consent of the members of society; but naturally, it is found in the pre-existent authority of domestic society. -- In certain cases, the consent of society determines the man who is to possess civil authority, a power that in itself has proceeded directly from God. This happens when, for example, a society is suddenly formed by the union of several independent families,{5} or when, a dynasty becoming extinct, society is for the time without a ruler. But these cases are purely accidental; according to the order of nature the supreme power is of itself constituted in civil society by the very principle of the society. For civil society cannot be conceived without the authority that directs it; therefore the principle of this authority is identical with the principle of civil society. But civil society is, so to say, only a development of domestic society; for the state supposes towns or villages, which in their turn have originated in the septs or clans that are the development of the family; therefore civil authority itself is, as it were, a kind of development of domestic authority.
84. It is an error to say, with Hobbes, that war being the natural condition of mankind, they have established among them to stop it a supreme power, invested with all their rights and with unlimited jurisdiction. -- According to Hobbes, civil power is of purely human institution, like society; the latter, inasmuch as it is a moral person, is absorbed, and ceases to be anything, while the monarch is all. This theory sanctions the most degrading despotism.{6}
85. It is an error to say, with Rousseau, that the civil authority, de jure and de facto, has its origin in social compact. -- This theory is false in its principle that human liberty is inalienable, i.e., incompatible with civil subjection, and it makes society radically impossible. For, on the one hand, since all men enjoy the same rights, the collective will which establishes public authority should be unanimous; but this unanimity is absolutely impossible of realization. On the other hand, even if unanimity of particular wills were possible, it would never be other than momentary and transitory, because fathers cannot contract for their children, and also because the right of the multitude being inalienable, according to Rousseau's teaching, it can break the contract when such action seems good to it. Therefore, the theory of Rousseau, as experience has indeed proved, is productive of only anarchy and disorder.
It is replete with absurdities. It puts forth as a means of preserving liberty intact the spoliation of all individual and personal rights. It destroys morality, since it recognizes no law superior to the multitude, and it leads to socialism and communism.
ART. VIII. -- DIVERSE POLITIES.{7}
86. The three forms of government to which all others may be reduced are monarchy, aristocracy, and democracy. -- Supreme power is essential to society; but the subject of this power varies with the times, the places, and the persons. But the subject of supreme power is either a physical person, i.e., an individual; or a moral person, i.e., a union of several individuals for a common end. In the former case, it is a monarchy; in the latter it is an aristocracy if those banded together to govern are the most notable individuals of the society; or it is a democracy{8} if the people govern themselves by representatives whom they name. To these three forms of government all others may be reduced.
87. Every polity that rests upon a just title is in itself legitimate and capable of procuring the happiness of the people. -- The civil power, although primarily derived from domestic power, is yet susceptible of several modifications. Reason demands a polity for every society, but not this or that particular polity. Therefore, if the power resides justly in one or in many, it is legitimate. It is also suited to procure the happiness of the people, because to this end three things suffice: light of intellect, rectitude of will, and strength of execution; but these three things may be present, whether the power resides in a single individual or in many persons.
88. With respect to a particular people, the polity which suits it best is that which corresponds most perfectly to its manners, its character, and its degree of civilization. -- It is with the happiness of society as with that of individuals; the same kind of rule does not suit all. The best for each is that which is most adapted to his age, his temperament, and his situation.
89. The polity that best suits a people is the most legitimate for it. -- The happiness of a people lies chiefly in order and peace. But that there may be order, everyone must know with certainty who has the right to govern. Nothing will better produce this certitude than evidence of legitimate title in him who governs. In general, says Zigliara, "that polity is best which best secures the end of society and is shown by history to be most firm and lasting."
90. The goodness of a polity depends not so much upon the form of government, as upon the probity of those who govern. -- The form of government is like an instrument which by force or skill may be used for good or evil. This is proved by experience; and hence the great political problem should be to seek out the moral means to hold those who govern to integrity of conduct, rather than the material force that is to keep them to duty. Such a means is religion.
91. Absolutely speaking, simple monarchy is the most perfect polity; yet in view of human weakness, monarchy with aristocracy, or monarchy with democracy, is more advantageous. -- It is evident that the more a government is one, the more perfect it is, because greater order reigns in the State. But no unity can be more perfect than that of an absolute monarchy. But, on the other hand, the most advantageous polity is that which pleases the people most, and which offers the most safeguards against abuse. But, in view of human weakness, such a polity is monarchy when tempered with aristocracy or democracy; for, on the one hand, all have the pleasure of sharing more or less in the power, and on the other hand, the ruler is less exposed to act unjustly, being limited in his authority and aided by many counsellors.
ART. IX. -- MANNER OF TRANSMITTING SUPREME POWER.
92. The supreme power is possessed by right of heredity, by right of election, or by right of victory. -- 1. Transmission by right of heredity is well adapted to procure the good of the people. It admits modifications according to the usages of the country, which should be respected; thus, in certain lands, women are entitled to succeed to power, and in itself this is not contrary to the natural law. 2. When the power is communicated by election, the election should be made by those only whose knowledge and prudence fit them to make a good choice 3. Lastly, the acquisition of power by right of victory, is legitimate only when it is the result of a just war, and when the good either of the conquered or of the other nations demands a change of government, or a forfeiture of their independence by the conquered people. In all other cases, he who would take possession of the power, would be a usurper.
93. A usurper cannot acquire by force either legitimate possession or political authority; but he ought to be obeyed in the exercise of his civil authority. It may even happen that a kind of prescription in the usurpation renders the expulsion of the usurper illegitimate. -- It is evident that a usurper cannot by force render the possession of power legitimate, for "usurper" means one who unjustly has possession. Neither has he right to distribute political powers among different social bodies, for, not possessing the rights, how can he dispose of them? But although a usurper possesses civil authority illegitimately, the authority is just in itself, since society cannot exist without it; therefore society should obey this authority, which, in the case of usurpation, can have no other organ than the usurper. And if it should happen that with time he would so strengthen himself that his expulsion would involve the subversion of social order, it would then be unlawful to attempt to drive him out. This the good of society demands; and in such a case, the legitimate head ought to forego his rights, or at least to suspend their exercise, because evidently he ought not to sacrifice the general good to his private interest.
ART. X. -- EXERCISE OF SUPREME POWER.
94. Supreme power includes three powers which are essential to it: legislative power, executive power, and judiciary power. -- Legislative power is the right to impose on subjects rules of conduct to instruct them in what they ought to do and what not to do in the interest of social order. Executive power is the power to oblige the members of society to observe the laws imposed on them. Judiciary power is the right to judge what is in conformity with justice and what is not, and to apply the law to particular cases. These three powers are essential to supreme power; without the first it cannot give direction to the social body; without the second this direction would be deprived of all efficacy; without the third it would remain abstract and without application. Although both executive and judiciary power are subordinate to legislative power, yet each of these three powers is absolute in its sphere.
95. The legislatice power cannot touch the constitution of the State; it can be exercised over all those external acts which may be necessary or useful to the public good. -- Since the legislative power can be exercised only in virtue of the rights which it holds from the constitution of the society, evidently it cannot touch the constitution itself. Existence, says the axiom, precedes action. Constitutive right belongs both to the people and to the supreme power; therefore every change in the constitution must be made by the whole social body and not by the power alone. Outside of what affects the constitution of the State, the legislative power extends to everything that can procure the good of the society. But it is clear that it can be exercised directly upon external acts only, for purely internal acts do not come under human authority; nor can it, as civil authority, interfere in what concerns religious authority, except to give concurrence and support.
96. The laws enacted by the legislative power should be honorable, useful, universal, and suitable. For this end the legislative power should know the wants of the people and choose wise and prudent men to judge of the fitness and goodness of the laws. -- The laws enacted by the legislative power should be honorable, otherwise they would deviate from the universal end of man, which is the moral good. They should be useful, for they would not otherwise refer to the particular end of society, which is the external good of its members. They should be universal, i.e., they should embrace all the individuals, not excepting the law-giver himself in his capacity of private person. They should be suitable, i.e., they should be adapted to the customs of the people for whom they are made. Hence he who exercises legislative power, must have the means of knowing the wants of the people and must be surrounded by men whose wisdom and probity will be a help to him in judging of the fitness and morality of the laws.
97. The executive power should be faithful, strong, and prudent. -- (1) The executive power should be faithful, i.e., subject to the laws.{9} If it were used arbitrarily and against the law, it would be despotism. (2) It should be strong, otherwise it would be without efficacy. The force with which it should be endowed, requires, first, that there be a perfect subordination in all those who concur in the administration of the State, so that the movement proceeding from the supreme power may be communicated promptly and faithfully even to the last instruments of power. On the other hand, the executive power should be able to exercise sufficient coercive power to repress or prevent the resistance offered to the law. (3) The executive power should be prudent, lest it become odious. Since the subjects enjoy liberty, they should be directed not by violence, but with such wisdom that they will voluntarily obey the law.
98. The judiciary power is divided into civil and criminal. The former should be easy of access and such that the judgment may be given surely, promptly, and with the least possible expense to the parties. The latter should punish evil in such a way that the penalty be as expiatory, medicinal, exemplary, and moderate as possible. -- The judiciary power, which, rigorously, may be regarded as part of the executive power, is divided into civil and criminal. The civil judiciary power judges the collisions of rights which arise among the members of society. That it may answer the needs of society, it is evident (1) that it should be of easy access, particularly to those of the lowest ranks in society. (2) There should be certainty in the judgment, and for this purpose there must be several judges, who should be capable and honest; within certain limits, appeal to higher tribunals should be possible. (3) It is necessary that justice be administered promptly and with the least possible expense to the litigants, because order demands that a violated right should be restored as soon as possible, and that the reparation should not be too onerous to the litigants.
The criminal judiciary power punishes crime as being a disturbance of the social order. The punishments which it inflicts should be necessary and sufficient: necessary, otherwise they would not safeguard the rights of all nor even those of the guilty; sufficient, otherwise they would not establish society in security. They will be such if they are reparatory of the troubled order, medicinal for the guilty, or at least exemplary for others, and lastly, as moderate as possible. But this moderation does not furnish an argument against capital punishment. For whatever several modern philosophers, as Beccaria (1738-1794), Bentham, and Ahrens (1808-1874) say against this punishment which has been inflicted at all times and among all peoples, it is not only just, but very often necessary; because certain crimes are of such a nature that the punishment of death is just and proportioned to their enormity, and this punishment is demanded by the public security to impress a salutary fear upon the wicked. On the other hand, if authority has the right to punish, even with the penalty of death, it has also the power to grant pardon. This power is limited only by the rights of the injured persons or those of social order.
99. The three functions of supreme authority considered in their exercise demand different subjects; considered in their source and principle, they require but one subject. -- The three principal functions of supreme authority are operations of different nature and demand diverse qualities, which can with difficulty be found in the one individual. Besides, in view of human weakness, the union of these functions in a single person would easily occasion great abuses. It is, therefore, necessary that they be exercised by different persons. But it is with these functions as with the operations of the soul, which, although necessarily performed by different faculties, are, nevertheless, one in their principle, which is the soul. In like manner, the functions of the supreme power must be one in the principle from which they emanate, otherwise there would be disorder in society. Those who, following Montesquieu, have boasted so much of the division of powers, have paid too much attention to possible abuses and not sufficient to society's absolute need of order and peace.
ART. XI. -- DUTIES OF THE RULER AND HIS SUBJECTS.
100. The ruler ought: 1. To know the art of governing; 2. To practise the art with an upright will; 3. To choose for office instructed and prudent men; 4. To protect the rights of the citizens, especially of the weak and poor; 5. To increase daily the public prosperity; 6. To assure intellectual and, above all, moral and religious progress; 7. To remove the causes of material calamity and, in particular, those that favor the propagation of error, vice, or irreligion. -- These duties are derived from the very nature of supreme authority. Since public authority exists in society only to maintain it in order, and to enable it to attain all the perfection of which it is capable, it is evident that the ruler, both in himself and through those whom he has associated with himself in the exercise of his power, should do all that is possible to procure the threefold perfection, physical, intellectual, and moral, of his subjects both as individuals and as a social body. To this end he will establish an efficient system of police for the prevention of crime; he will enact salutary laws prohibiting the spread of doctrines opposed to the primary truths of religion, and the publication of aught that offends good morals. He will protect the national industries, and try to secure to all a moderate competence, always tempering the rigor of the law with the clemency befitting his dignity and the occasion.
101. The duties of subjects are: 1. Respect for their ruler; 2. Obedience to the laws and to the magistrates charged with their execution; 3. Love of country. -- The authority of the ruler is a participation of God's authority; therefore it must be honored and respected. Authority is always sacred and inviolable; the qualities of the person who is its depository may dim or enhance its lustre, but they do not change its nature. Secondly, subjects should obey the laws and the magistrates charged with their execution. Power holds from God the right to command and to make laws; therefore, not to obey the laws is to resist God. But when the laws are evidently opposed to the divine will, the right to command ceases, and obedience, far from being obligatory, would be sinful. In the doubt the presumption is in favor of the power.{10} The third duty of subjects is love of country. The social body to live and prosper demands the services of those who compose it. Therefore the State has the right to demand these services in order to attain its end; but love of country is a duty common to all, without being the same for all. In the love of country a twofold error is to be avoided: the one is seen in those who not limiting themselves to finding their country dearer to their heart than any other, exalt it beyond measure and believe that they should attribute to it all kinds of perfection. The second is the error of pagans, who make their country a kind of divinity to which they must sacrifice everything, even the personality of the individual, all duty and justice.
_ {1} Liberty, however, as Liberatore observes, cannot even be conceived without reason.
{2} Russo (§ 320) places the end of civil society in the easier and fuller attainment of the security, well-being, and perfection of the citizens. By security he means immunity from the evils proceeding from physical and moral causes; by well-being, an abundance of material goods; by perfection, the development of the intellectual and moral faculties of the citizens.
{3} See Liberatore, p. 235.
{4} "Civil authority consists in the right of establishing order in a multitude with a view to attain the end of the state; civil subjection lies in obedience and in the duty of following the direction given by authority for the attainment of the end. Hence it follows that authority differs widely from dominion, and civil subjection from servitude. For dominion . . . consists in the power of disposing at will of something for one's own use. Now dominion is concerned with things, not persons; its use proceeds from liberty, not duty; its end is the utility not of others, but of the owner. Authority, on the contrary, is directly concerned with persons; its exercise is prescribed by reason; it regards not the profit of the superior, but the good or the whole community. Now the slave as such is compared to things; he depends absolutely on the will of his master in his actions; he intends not his own profit, but that of his master. But nothing of this is found in the subject, who even as such retains his personal dignity and right, is directed not by the caprice of another but by law, . . . and acts not for the private good of the ruler, but for the common good of the whole social body of which he is a part." -- Liberatore, Institutiones Ethica et Juris Naturalis, p. 241.
{5} As in some of the early settlements in America.
{6} From the principle of Hobbes enunciated in 95 (Moral Philosophy ), p. 412, it follows that "Nature dictates to every man the right to seek his own happiness, the highest end of his being, at whatever expense to his fellow-men. The state of nature, therefore, is a state of warfare among men." -- New American Cyclopaedia.
{7} "The distribution of power in the state, and especially of the sovereign power, is called the polity." (Aristotle.)
{8} This is representative democracy as opposed to pure democracy. The latter is rarely workable, for it implies that all the members of the community share directly in the government.
{9} But this fidelity is perfectly consistent with reprieve or even pardon in individual cases, if such exception tend to the common good.
{10} On resistance to de facto government, Balmez (History of European Civilisation, chap. 54), writes: 1. "We cannot, under any circumstances, obey the civil power when its commands are opposed to the divine law. 2. When laws are unjust, they are not binding in conscience. 3. It may become necessary to obey these laws from motives of prudence that is, in order to avoid scandal and commotions. 4. Laws are unjust from some one of the following causes: When they are opposed to the common weal -- when the legislator outsteps the limits of his faculties -- when, although in other respects tending to the good of the common weal, and proceediug from competent authority, they do not observe suitable equity for instance, when they divide unequally the public imposts." See also Zigliara, M. 55, xvii.