221. Civil society may be defined as a union of many such persons as are their own masters, sui juris, joined together for the purpose of protecting their rights and securing their temporal happiness. In the present chapter we shall consider the nature and the origin of civil society, and the exercise of civil functions.
ARTICLE I. THE NATURE AND THE ORIGIN OF CIVIL SOCIETY.
222. The nature of civil society can be best understood from a detailed examination into its constituent notes, namely: 1. Its end or purpose, 2. The units composing it, 3. The authority governing it, 4. The means employed to obtain its end.
§ 1. The End of Civil Society.
223. 1. We have seen in a preceding chapter (No. 199) that society, or association of some kind, is natural to man, and, consequently, that it is an institution of God. The society first in the order of nature is the family, or domestic society, and next in order comes civil society, or the State.
The necessity of civil society is obvious: when many families live in proximity, they are forced to have intercourse of some sort with one another, In the course of time it will come to pass, as each family has chiefly its own interests at heart, that many of these families will not be moderate in their aspirations, their claims, and their efforts at aggrandizement. Hence, unless they be united for the purpose of securing public peace and the protection of personal rights, they will be frequently at variance, and even in deadly strife with one another.
224. The preservation of peace among its members is the primary end of civil society. United by a common bond, men can render great assistance to one another in securing, with comparative ease, the comfort and happiness of all; and opportunities for the development and exercise of the human faculties are thus afforded which would be impossible without such an association. The complex end of civil society is clearly stated in the preamble to the Constitution of the United States, which reads thus: "We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
225. Civil society, we repeat, is natural to man, and, consequently, owes its institution to the Creator. It is natural, because it is the outcome of man's natural tendencies and is necessary for the development and application of his highest powers. Without civil society, men could not lead lives worthy of their rational nature and their ultimate destiny. The theory of Hobbes and of Rousseau, that man is naturally a savage, perpetually at war with his fellow-men, and that society is an afterthought, something artificial superadded to his nature, is as opposed to historical facts as it is degrading to the human race.
§ 2. The units of which civil society is composed.
226. When certain families have entered into association for mutual aid and protection, the domestic relations in each family are manifestly not altered thereby: the family continues to be a natural society; each family is a moral person, the father acting for all the members. Hence the units composing civil society are not individual men, women, and children, but the families, or the heads of families. The wives and children are indeed members of the State, though not directly; they are members of the families that make up the State, and they are represented in the State by the heads of the families to which they severally belong. It is neither necessary nor desirable for the common good that the State should deal directly with them, ignoring the natural organization of the domestic society. Unmarried men, who are properly qualified by age and civil condition, i. e., who have attained their majority and are their own masters, sui juris, share with heads of families in the enjoyment of civil rights.
§ 3. Civil Authority.
227. That the common good may be attained, the memhers of which civil society is made up often stand in need of direction, and sometimes of compulsion. The power thus to direct and compel is called civil authority; it is, as it were, the soul or animating principle of the body politic. What rights should belong to this authority must be inferred from its purpose, which is the attainment of the end of civil society. Civil authority, therefore, is to possess all those rights which are necessary to direct, and even compel, the citizens to tend towards the end of the State, i. e., public peace, the protection of rights, the more perfect attainment of happiness for all, provided the means employed be consistent with individual rights.
228. But may not the common good require the sacrifice of individual or private rights? As the common good consists principally in the defense of the private rights of individuals and- families, it cannot require such a sacrifice. Exceptions in this matter are more apparent than real. Yet, aside from the forfeiture of personal rights or privileges for certain misdeeds, cases may arise in which individuals or families have to forego private advantages in order to serve the common good: as when a citizen is called upon to expose his life for the defense of his country. In this case his right is not violated; the State does not take away his life, but it obliges him to expose himself to danger for a greater good, in accordance with the demands of duty.
229. In levying taxes, the State distributes the common burden of expenses incurred for the public good. The right of eminent domain (No. 177) suspends a private right according to the principles explained in a preceding book (No. 121). The tendency of certain agitators in politics and political economy is to extend the powers of the State beyond all just limits, to the prejudice of private rights. This tendency, whether it is manifested in the advocacy of unjust taxation, in special class legislation, or in meddling with parental rights of education, is directly at variance with the purposes of civil government, and opposed to the spirit of our Constitution. Civil government exists for the welfare of the people and the protection of private rights. When, therefore, the government usurps the rights of individuals, it becomes a form of tyranny, quiet submission to which is not patriotism, but slavery.
230. Whence comes the authority of the State? The question may refer to civil authority in the abstract or in the concrete. Civil authority in the concrete regards the particular form of government which a particular State or nation has come to assume. It is evidently a matter of historical fact: certain events have brought about the assumption of that manner of government.
Supposing now that a State or government exists, we may inquire whence it derives authority; i. e., the right to govern its subjects. This latter is a consideration of authority in the abstract and is an ethical question.
231. Thesis VI. Civil authority is derived from God, and can impose conscientious obligations.
Proof. As in every society (No. 196), so in civil society, authority is necessary; it is the very form or animating principle of civil society (No. 227). Now, God is the founder of civil society, since it is natural to man; and God necessarily wills that everything He makes shall possess all powers necessary for the purposes for which He made it. But authority is necessary for the purpose of civil society; therefore, it possesses this authority from God.
From this principle, it follows that civil government can impose obligations in conscience. Authority means the moral right to govern. Now, such a right implies on the part of the governed the moral obligation to obey. Nevertheless, the authority thus bestowed is limited to those purposes for which it was intrusted to the State -- namely, to procure the end of civil government by just means. Hence, an unlawful use of authority imposes no moral obligation.
232. It has been much debated whether civil authority comes immediately from God to the ruler, or through the medium of the people, by whom it is intrusted to the rulers. Certainly, it can hardly be said that such authority resides with an unorganized multitude; yet, as soon as the community has become an organized body, it has the moral power of civil government. It may intrust this power to one or more persons, and it may place restrictions upon these both with regard to the time and the manner of exercising the authority thus bestowed.
233. One thing is certain -- namely, that civil authority is not a mere collection of private rights intrusted by all the individuals of a community to the management of one or more chosen members. The civil power has the right to inflict the death penalty (No. 249) in punishment of enormous crimes. But such a right could not belong to a merely voluntary association of individuals, since they cannot give to any person or persons a right which they do not possess. Therefore, civil authority is not a mere collection of private rights. This principle is further explained in the following thesis
234. Thesis VII. The doctrine of the social contract maintained by Rousseau is illogical.
Explanation. According to the fanciful theory of the "social contract" devised by Jean Jacques Rousseau, the citizens, when they obey the authority of the State, obey themselves or fulfill their own commands; for civil authority he declared to be nothing else than the free union of individual wills. He supposed that the members of a community have agreed to intrust the exercise of their individual rights to one or more men, who thus become their agents for the administration of these associated rights, just like the agents of a business firm, and who may be, like such agents, dismissed at the pleasure of their employers. As forms of government have existed from time immemorial, the supposed contract must have been entered into by our remote ancestors.
Proof 1. Either the citizens are bound by the agreement of their ancestors to a civil compact or they are not so bound. If such an obligation exists, they do not render obedience to themselves, as Rousseau would have it, but to their ancestors; hence, they would be bound by a will not their own. If, however, no such obligation exists, then there is no civil authority at all; for that is no authority which every one is free at any moment to set aside. There can be no true right to command where there is no corresponding duty to obey.
Proof 2. This theory could never explain the right, admitted by all nations, of inflicting capital punishment; for no one can give to another what he does not himself possess -- the right to take away his life.
§ 4. The Means Employed by Civil Authority.
235. The means employed to obtain the end of civil government are of three kinds:
1. Acts commanded as necessary for this end, such as the payment of taxes, or the raising and equipment of armies in time of war.
2. Acts forbidden as injurious to private rights or to the common good. On both these points there is need of great care that, by the promotion of certain lawful objects or the protection of certain rights, other rights be not violated, especially those of a more sacred character; this would defeat the very purpose for which civil government exists.
3. The organization of the government, or the civil polity which is to direct the means to the end.
236. There are various forms of organization:
1. The monarchical, in which all civil power is vested in one man, whether he be called king or emperor or by any other title.
2. The aristocratic, in which power is vested in a few individuals or families.
3. The democratic, in which the people hold the power; it is then usually administered by representatives whom the people have chosen. These are the simple forms of government organization. Mixed forms are those in which the simple forms are variously combined. In the British Government, for instance, the supreme power is vested in the crown -- king or queen -- and in Parliament, which consists of the House of Lords, as the aristocratic element, and the House of Commons, as the democratic element, the members of the latter House being elected by the people.
237. Practically, that form of government is the best for any people which is best adapted to obtain for them the end or purpose of civil power; that form, namely, which, account being taken of the character, traditions, and various circumstances of the people, is best suited for the defense of their private rights, for the maintenance of peace at home and abroad, and for the development of the country's resources; which will thus contribute to the common happiness on earth, and enable every member of the community to attain his last end.
ARTICLE II. THE FUNCTIONS OF CIVIL GOVERNMENT.
238. To fulfill its purposes, civil government must exercise three functions, namely: the legislative, in the making of laws; the judiciary, in the application of the laws to particular cases; the executive, in carrying laws and judgments into effect. All three functions may be exercised by one person or body of men; but in this country they are intrusted to three distinct departments: the legislative to Congress, the judiciary to the law courts, the executive to the President.
§ 1. Legislation.
239. Since the State derives its authority from the moral law, it can, as we have shown, bind its subjects in conscience to observe its enactments (No. 231). In order to possess this binding force, such enactments must be just (ibid.); therefore, they must fulfill all the conditions required for just laws (No. 81). Hence, one readily perceives how false, when applied to legislative acts, the common saying may be, "The voice of the people is the voice of God." An unjust law enacted, even with perfect unanimity, by an entire nation would have in itself no binding force; a fortiori, it has no such power if passed by a mere majority. In fact, a majority may be just as tyrannical as a despotic monarch. Since laws are, by their nature, directions for future acts, they cannot justly brand an action as guilty which before the passage of such laws was considered innocent; nor can they justly increase the punishment for an act already committed. Hence, the Constitution of the United States forbids the enactment by Congress of ex post facto laws.
240. Though the civil authority has power to bind the conscience, yet not every purely civil law imposes such obligation. For laws have no greater binding effect than their authors intend to impose; nor can the obligation exceed the requirements of the common good. Some laws accomplish all the purposes for which they were enacted, if the transgressor is obliged to pay the appointed penalty when caught in the forbidden act; and the legislator is often content with this kind of sanction without being willing to lay a moral obligation on the conscience. Such laws are styled merely penal laws. In practice, it is often not easy to determine which laws are merely penal. Evidently, however, those laws oblige in conscience the violation of which would be positively injurious to the common good.
241. The office of legislation is to direct the acts of the citizens to the attainment of the end proper to civil society. That end includes public order, defense of private rights, and development of material and mental resources for the common good. Hence, legislation must take care --
1. To ward off physical evils from the country, e.g., contagious diseases. Therefore it has power to use the means necessary for such purpose, e. g., the enactment of sanitary regulations, the establishment of quarantine, etc.
2. To ward off moral evils, such as the dissemination of false doctrines that weaken morality, undermine society, and attack natural religion. Hence, too, the State has a clear right to put just restrictions on license of speech and of the press. The public profanation of Sunday, indecent theatricals, houses of debauch tend to degrade the standard of public and private morality, and, consequently, are subject to legislative action. On the other hand, religion, the chief safeguard of morals, ought to be at all times countenanced and actively protected.
3. To protect individual rights, such as the rights of minors, of orphans, of those concerned in contracts, in last wills, etc.
4. To forward material improvements, such as highways, bridges, watercourses, harbors, and all such works generally as are useful to the country at large and too vast for private enterprise.
5. To promote mental development, by encouraging education and assisting educational institutions, especially those devoted to the teaching of the highest branches; for education contributes largely to the common good, and higher studies in particular, though pursued by the few, redound to the welfare of the people generally.
242. In many undertakings the State ought to aid but not to supplant private enterprise, assuming the lead when individuals and corporations can advance no further, subsidizing important works that affect the general welfare, without exercising a monopoly or competing with private efforts. The tendency of Socialism is to substitute State control for private enterprise in many departments of business, without any benefit to the common good. -- Thus, instead of being a protector, the State would become a usurper of private rights, and in this way defeat the purpose of its existence.
§ 2. The Judiciary.
243. The task of the judiciary is twofold:
1. To settle disputes between rival claimants: this is done in the civil courts.
2. To prosecute, in criminal courts, persons charged with violating the law, and, in case of their conviction, to award the penalty appointed for the transgression. The settlement of civil disputes is often submitted by the disputing parties to arbiters chosen by themselves. An arbiter differs from a judge in this, that the latter acts in virtue of the sovereign power of the State, and, therefore, possesses authority over the parties concerned, while an arbiter has no rights in the matter under dispute except such as are conceded to him by the litigants. From the decision of the lower courts appeal may be made in important cases to higher courts. But there must be, in the nature of things, a supreme court from whose decision there can be no appeal. Though even this higher tribunal may err, nevertheless the public good requires that its decisions shall be final.
244. The courts are guided by existing laws, the expediency of which is no matter for their consideration; their work is the interpretation and application of existing laws to special cases. Yet certain courts are sometimes called upon to decide whether a given enactment is truly a law, whether it has all the requirements of a just law (No. 81). If an enactment is evidently unjust or is openly at variance with the Constitution of the country, it is not a law, and judges cannot justly enforce it.
245. The preservation of public order, one of the primary functions of civil society, necessitates the punishment of social crimes. Now, a social crime is an outward disturbance of civil society by the violation of a strict right of our fellow-men. Evil acts in which injury is done to those persons only who freely take part in them, do not violate a strict right of any man, and are, therefore, not subject to the punishments of civil authority.
It is for the legislative power to appoint the punishment of crimes, for the judiciary to award the punishment in individual cases, for the executive to inflict it, or, in exceptional circumstances, at the discretion of the official holding the necessary authority, to remit or commute the penalty.
246. Thesis VIII. Civil society has the right to punish social crimes.
Proof. Every natural society has a right to those means which, in the ordinary course of events, are necessary for it to obtain its ends; but the punishment of social crimes is such a means for civil society. Therefore civil society has the right to punish social crimes.
247. Let us consider how and why such punishment is necessary in order that civil society may attain its end.
1. That end is the maintenance of social order. To secure this, it is necessary that advantage and pleasure be consequent on the observance of order. But the criminal disturbs the order of things by seeking to make advantage and pleasure consequent upon disorder. Accordingly, justice requires, for the restoration of right order which he has disturbed, that he shall lose advantages or feel pain. For this purpose, then, various kinds and degrees of punishment are needed to match the various kinds of evil doings and the various grades of guilt. Hence, one purpose of legal punishment is expiation.
2. The end of civil society is likewise to guard rights from violation; but this cannot be done unless offenders be punished in a manner to deter others from following their evil example; the penalty should, for this purpose, be proportioned to the crime.
3. The criminal himself needs correction, i. e., by the bitter medicine of pain he is to be induced to give up his vicious practices, and kept from disturbing the social order in the future.
248. Thus a threefold reason exists for the infliction of legal punishment; it is expiatory, deterrent, and medicinal. In domestic society, punishment is primarily medicinal for the correction of the offender, yet at times it may be deterrent for others. In civil society, punishment is chiefly expiatory and deterrent, and it need not be medicinal.
249. Thesis IX. Civil society has the right to inflict the death penalty for enormous crimes.
Explanation. We know from Revelation that God has bestowed this right upon civil authority; we maintain here that it belongs to civil society by the principles of natural reason.
Proof. The means employed by civil society must be sufficient to attain its end. Now, in many cases, nothing less than capital punishment is sufficient to attain that end. For, (a) There are criminals so depraved and so indifferent to other forms of punishment that the death penalty alone can deter them from committing enormous crimes. (b) Some crimes, such as deliberate murder, treason, or parricide, disturb social order to such an extent that capital punishment alone approaches a proportionate atonement.
1. Man is too noble a being to be slaughtered as a warning to others. Answer. Such certainly he is if he has done no wrong; not, however, if he has degraded himself by a monstrous crime.
2. The present doctrine would justify "Lynch law," and mob violence, which are evident evils. Answer. A mob has no authority to inflict death: civil society receives such authority from God, its founder.
3. Every man has an inalienable right to his life; therefore the State cannot condemn him to death. Answer. When we say that a right is inalienable, we mean that no one can take it away except God and one delegated by Him for that purpose; now the State has a commission from God to inflict the death penalty for enormous crimes.
4. In some States the death penalty has been abolished; therefore it is not necessary. Answer. That consequent does not follow from the antecedent. It is not clear that the purposes of civil government are sufficiently attained in those States. If they are, it is owing to special circumstances, and constitutes an exception to a general rule.
5. Desperate men are not restrained by fear of the death penalty. Answer. Nevertheless it is the most potent restraint that the State can use; besides, such men are prevented by the prompt infliction of the penalty from multiplying their enormities. Moreover, few criminals have been found so hardened as not eagerly to desire a commutation of capital punishment to imprisonment for life.
§ 3. The Executive.
251. In addition to the legislative and judicial departments, a country requires for its government executive officers, an armed force, and a treasury for the remuneration of public services. Those officials whose duty it is to carry the laws into effect form the executive department, which is in some respects dependent upon the two other departments. The President of the United States is the chief executive officer of the nation; at the same time he is at the head of the legislative department, holding the power of veto and giving validity to the enactments of Congress by affixing his signature thereto. The President is also the official embodiment of the majesty and authority of the nation.
252. The public officers ought to be chosen or appointed from those who, by their knowledge, ability, fidelity, and integrity, are well qualified to procure the common good. The practice of distributing offices as the spoils of party victory among the unworthy and incompetent, is a gross violation of distributive justice and a serious injury to the State.
253. The treasury is supplied either by direct taxation, i. e., by taxes imposed on the property of the individual citizens, or by indirect taxation, i. e., revenues and duties paid for manufactured and imported goods. The right of taxation is based upon the need of the government to defray public expenses incurred for the common good; hence, the taxes levied should not exceed these expenses. The assessment of taxes for each class of the citizens ought, as far as is practicable, to be proportioned to the benefits received therefrom. Thus, each citizen receives from the State an equivalent for the taxes he pays, and no one is forced to labor for another without just compensation. This rule does not prevent the taxation of the rich to supply assistance to the needy poor. The honest poor have a right, as human beings, to live in decent comfort, and, if they cannot succeed in doing so by their own exertions, they must be aided by the wealthy members of the community. It is even necessary for the common good that no class of the people should be driven by want to discontent and desperation.
254. The armed force required by civil society consists usually of:
1. The police, a body of men who exercise a constant guardianship over public tranquillity and the rights of individuals.
2. The militia, or civic troops, intended chiefly for the protection of the State against the insubordination of its own subjects.
3. The regular army, whose main purpose is defense against foreign foes.
As personal danger naturally accompanies the work of armed men, these are bound, when the occasion requies it, to expose themselves even to death in the performance of their duty. In the use of armed force, nations approach nearest to ideal perfection when this use is brought within the narrowest limits, while at the same time the public peace is vigorously maintained. Accordingly, the people of the United States have reason to congratulate themselves that public order reigns so extensively, though the army is comparatively diminutive, the militia seldom needed, and the police rarely compelled to make use of deadly weapons.
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