V: Rights in Domestic Society
"I now have to take in hand the most complicated, thorny, and highly litigious part of social Right, split as it is by disparate opinions and encumbered with fierce resentment, hatred, and love -- stained even by blood" (p. 4). So begins Rosmini's account of rights with respect to civil society. In order to deal with such a difficult subject properly, it is necessary to pay close attention to the foundations, and in discussing social right, those foundations are found in the nature of the society in question. Civil society is in some sense the culmination of human nature, and therefore it is the form of society we most have to struggle to perceive clearly. We start with natural theocratic society (the universal society of humankind) and domestic society; we learn about societies in the context of these. They have a simplicity to them, relatively speaking, and our familiarity with them begins early. Supernatural theocratic society is more difficult, but we have many obvious analogies to natural theocratic society and domestic society to work with, and part of it is based on revelation and therefore, at least in its basic elements, requires no deep rational reflection to reach. Civil society, on the other hand, is immensely complicated, and understanding it requires abstractions we do not use on a daily basis. To understand civil society is in some sense to begin to understand human nature itself, and that is not something for which we have much facility.
All societies have three elements: the human fellow-feeling (consentimento dell'uomo) that unites person to person, the concept of the special society itself, and the good intended by means of that society. "These three elements are, "as it were, the beginning, the core, and the aim of society" (p. 8). All societies may be considered de facto, as actually subsisting, or de iure, in its nature as shown by its concept. Theocratic society alone is principally de iure; it exists in ideal, de iure, and is received by human beings so as to become de facto. Domestic society and civil society contrast with this in that we develop the de facto society, and through it achieve the de iure society. The good at which theocratic society aims is union with God; that at which domestic society aims is the development of human nature. Civil society aims at a somewhat more complicated good, however. Civil society is a union of domestic societies, which need to come to agreements to reduce and prevent violations of rights due to divergences among households; thus the proximate good at which civil society aims is the peaceful co-existence of families, in which the conflicts are prevented or reduced and rights are regulated so that rights may be exercised without conflicts. That is, it aims at good order with respect to the modalities of already existing rights. Thus civil society can only arise through extensive free reflection as a result of human genius and art (cf. p. 14), and it exists specifically to further theocratic society and domestic society. The nature of civil society is often obscured by confusion of its pure social right with seignorial right; civil society is fundamentally structured by agreement rather than dominion. In particular, "Civil society is the union of a certain number of fathers who agree that the modality of the rights which are administered by them should be regulated perpetually by a single mind and a single (social) force in order to better safeguard these rights and ensure their most satisfactory use" (p. 25).
A number of different kinds of society have the aim of regulating modalities of rights, but civil society is distinguished from the others by being universal in scope; it considers all rights. This has led to considerable confusion among people who do not clearly recognize that civil society is concerned with modality of rights. Civil society is universal in authority with respect to rights, but this does not mean that it is the source of all rights. In fact, it is strictly speaking the source of no rights at all; 'civil rights' is a name we use to talk about cases where civil society has activated some latent function of already existing rights in a particular way. Civil society is universal, but it is not and cannot be totalitarian; it does not touch the substance of any right, only the way it relates to titles and to other rights. Likewise, while civil society has a sort of supremacy with regard to other societies, it cannot be the supremacy of absolutism; it is merely the most eminent society concerned with modality of rights, and regulates the relations between society and society, for the good of all societies. It is a universal coordinator, not a universal despot; it is a mediator, not a tyrant; other societies are its clients, not its slaves.
Civil society also has the feature of perpetuity. This does not mean that it cannot be dissolved, but that it is a society that has no inherent expiration; it is built to go on indefinitely. "Civil society, therefore, must regulate the modality of rights of its members universally, supremely and in perpetuity" (p. 32). These three characteristics require that civil society also have prevalent force, the ability to overcome obstacles that stand in the way of its universal, supreme, and perpetual regulation of the modality of rights. And because civil society regulates all rights so as best to preserve all rights, civil society is concerned with common good, in the sense of the good of all subjects of rights in the society. Rosmini sharply distinguishes this common good from public good, which is the good of the the civil society as a whole; confusions of the two create despotism and usurpation. However, the public good can also be an end of civil society if the public good itself aims at common good. Thus the rights of no subject of rights can be sacrificed to the public good, although, if rights are preserved, public good is to be preferred to private good. Civil society can likewise have private good as an end, if this is open to all and consistent with the rights of all.
Civil society also cannot exist without external means. These have to be provided by its members, and in such a way that all members directly or indirectly contribute to this provision of external means. Such members are the citizens. Not being a citizen does not strip you of individual, theocratic, or domestic rights, and it is possible for someone not to be a citizen of any civil society. Likewise, nothing prevents a person from being a citizen of several civil societies. And, properly speaking, in any civil society, considered simply as a civil society, the social power of any citizen, outside of the judicial part of society, should be proportionate to their contribution to the means of the society.
When heads of households combine to form civil society, they give civil society the ability to regulate the modality of rights, but this is not an exclusive thing; rather, they are agreeing to regulate such modalities in common rather than solely regulating the modality of their own rights. The authority that comes form this union of households has two forms: legislative and executive. When they exercise the legislative authority through representatives, the authority of the representatives is limited by its origin: the representatives are limited to regulating the modalities of rights for common benefit, and they can only do so to the extent and in the way that they are mandated as representatives. In practice, however, we often do not find pure civil societies; instead, civil societies are combined with an element of seignory or dominion. Those in the society who exercise this dominion should, strictly speaking, confine themselves to regulation of the modalities of rights, although due to inadequate understanding of civil society, they do not always do so.
Civil government arises when someone has title to govern. Rosmini divides these titles into two families: titles of first acquisition and titles of second acquisition. Titles of first acquisition may arise from other rights or not. The titles that arise from prior rights are:
(1) The title of absolute Being: God, as Creator, has first and absolute right, and therefore has the first title to govern civil society.
(2) The title of paternity: Regulation of modalities is already contained in the patria potestas belonging to the head of household; civil society itself is formed out of the agreement of heads of household to exercise this regulation in common.
(3) The title of seignory: "Anyone who has bond-servants, that is, persons obliged stably to his service, is clearly also the person who regulates the modality of their rights by general ordinances" (p. 81).
(4) The title of already existing right of proprietà : Landowners who have others living and working on their land gain the ability to regulate the modality of rights insofar as it concerns living and working on that land; in Egypt, for instance, the king owned all land as part of the foundation of his power to govern.
The titles of first acquisition that can be had independently of other rights may arise from unilateral action or from commission by the heads of household forming the civil society. These are essentially various forms of title of occupancy. Unilateral occupancy may be either peaceful or forced.
(5) The title of peaceful occupancy: By individual right, "everyone can take possession of an unoccupied good, provided the occupancy harms no one" (p. 89). Civil government is a good for the one exercising it and, considered in itself, beneficial for the one governed, so if everyone consents to someone exercising a civil authority that is not already taken, this is a just title. Since jural resentment -- that is, the feeling of a reasonable person that their rights are being violated, that is, that what belongs to them is being invaded, is an important sign of injured right, the lack of any jural resentment over someone taking over any part of civil governance is a good sign that it is legitimate.
(6) The title of forced occupancy: In general, no one can force others to give him the authority to regulate the modality of their rights, but political situations are immensely diverse, and so there are unusual cases in which taking over powers of civil governance by force can be just title. These are all defensive, either in self-defense or in defense of others. If you are living in a barbarian land and the barbarian start actively violating your rights, it might be that your best option is to use force to establish civil government, e.g,. to prevent a more terrible war. A case of doing it in defense of others might be if you are dealing with what Rosmini calls vices against nature, which overlap with what we call 'crimes against humanity'; your best option might in such cases be to go to war and establish civil government by right of conquest.
One can also have title to civil government by commission from the those forming the civil society; that is, you can receive it as part of a contract created by all of the heads of the household in forming the civil society.
(7) The title of occupancy by the body of the people: While Rosmini puts a great deal of emphasis on the importance of the people, he wants to head off what he sees as a major error, the idea that there is just a 'People' always already constituted with an inalienable sovereignty. In reality, "prior to the existence of civil society, a people as such has no political right; they do not form a body, exist as a collective person, have unity" (p. 106). The People are formed when the families come together in civil society in such a way as to recognize themselves as having civil power as a body. This People can then make for themselves a representative government to exercise the civil power that the People corporately occupy.
All of this, again, is talking about pure civil power. Historically, while civil society is natural to us as being necessary for the full scope of human reason and capability, recognizing what does and does not pertain to civil society itself has always been difficult, and requires a considerable degree of experience and abstraction. Thus civil power has tended to be intermingled in various ways with seignory and other kinds of power, in ways that are not very carefully distinguished. Thus, to take an example Rosmini would not have really been able to consider, the United States has pretensions to many of the features of civil society, but like all modern nation-states, when it formed it essentially to gave to Republic and the particular states most of the rights and powers of feudal and monarchical governments, which are heavily matters of seignory. Being citizens of a civil society and being subjects of a dominion are distinct things, but when we talk about citizenship, we don't disentangle them, and don't even recognize them as needing to be -- we use 'citizen' to talk perhaps even more about our being subjects in the jurisdiction of the federal government than about things that are strictly relevant to being citizens of the United States as a civil society. This is quite common. Even a country like the United Kingdom which explicitly maintains the distinction in principle -- British citizens are citizens of the realm and subjects of the Crown -- does not actually make much of an effort in practice to keep them distinct. In reality the seignorial powers and the civil powers have to be justified independently, because while combined in practice, they are different things. And one very particular distinction is that civil power is specifically for regulating the modality of rights so that they are exercised in a way harmonious with the rights of others, and is not itself the foundation or source of any right itself. If you start treating a civil government as if it had power over rights, rather than just over how our rights fit together, the society begins to degenerate into despotism. What Congress or Parliament does for you as your lord and master is very different from what it does for you as your representative and agent. Lords (other than God) do not have universal sovereign authority or unlimited scope of governance at all; civil powers do but are restricted to regulating how rights relate to each other in practice. When you try to combine them, so that you have a power trying to exercise dominion over rights on the scale of sovereign and universal civil society, you have totalitarianism.
There is another kind of title to civil power besides the titles of first acquisition, and these are the titles of second acquisition, which arise because civil power previously held by someone is transmitted to someone else. There are three ways that already existing civil power can be transmitted:
(1) The first person might both retain and communicate it. An example would be Diocletian dividing the imperial office of the Roman Empire.
(2) The first might might give it up, passing it to the one to whom he communicates it. In hereditary monarchies, it's common for some civil power to pass by inheritance at the death or abdication of the monarch to the royal heir, for instance.
(3) The first might simply retain it, so that the second receives it not as proprietà but as an instrument of the first. This is, for example, the way in which power passes to elected representatives in societies organized by popular sovereignty.
All of this is quite abstract; obviously, a full discussion of rights associated with civil society has to look at the concrete as well, since the history of civil society and how it develops plays an important role in how its structure works. I have, with limited exceptions, mostly skipped over that here. What we still need to look at are the specifics of rights in civil societies that are already constituted.
to be continued
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Antonio Rosmini, The Philosophy of Right: Volume 6: Rights in Civil Society, Cleary & Watson, trs., Rosmini House (Durham, UK: 1996).
