CHAPTER XXI
CIVIL SOCIETY AND THE POLITICAL STATE
We have been considering responsible freedom as it centers in and affects individuals in their distinctive capacities. It implies a public order which guarantees, defines, and enforces rights and obligations. This public order has a twofold relation to rights and duties: (1) As the social counterpart of their exercise by individuals, it constitutes Civil Society. It represents those forms of associated life which are orderly and authorized, because constituted by individuals in the exercise of their rights, together with those special forms which protect and insure them. Families, clubs, guilds, unions, corporations come under the first head; courts and civil administrative bodies, like public railway and insurance commissions, etc., come under the second. (2) The public order also fixes the fundamental terms and conditions on which at any given time rights are exercised and remedies secured; it is organized for the purpose of defining the basic methods of exercising the activities of its constituent elements, individual and corporate. In this aspect it is the State.
§ 1. CIVIL RIGHTS AND OBLIGATIONS
Every act brings the agent who performs it into association with others, whether he so intends or not. His act takes effect in an organized world of action; in social arrangement and institutions. So far as such combinations of individuals are recurrent or stable, their nature and operations are definitely formulated and definitely enforceable. Partnerships, clubs, corporations, guilds, families are such stable unions, with their definite spheres of action. Buying and selling, teaching and learning, producing and consuming, are recurrent activities whose legitimate methods get prescribed. These specific provinces and methods of action are defined in Civil Rights. They express the guaranteed and regular ways in which an individual, through action, voluntarily enters into association or combination with others for the sake of a common end. They differ from political rights and obligations in that the latter concern modes of social organization which are so fundamental that they are not left to the voluntary choice and purpose of an individual. As a social being, he must have political relationships, must be subject to law, pay taxes, etc.
1. Contract Rights.—Modes of association are so numerous and variable that we can only select those aspects of civil rights which are morally most significant. We shall discriminate them according as they have to do (1) with the more temporary and casual combinations of individuals, for limited and explicit purposes; and (2) with more permanent, inclusive, and hence less definable ends; and (3) with the special institutions which exist for guaranteeing individuals the enjoyment of their rights and providing remedies if these are infringed upon. (1) Contract rights. Rights of the first type are rights resulting from express or implied agreements of certain agents to do or refrain from doing specific acts, involving exchange of services or goods to the mutual benefit of both parties in the transaction. Every bargain entered into, every loaf of bread one buys or paper of pins one sells, involves an implied and explicit contract. A genuinely free agreement or contract means (i.) that each party to the transaction secures the benefit he wants; (ii.) that the two parties are brought into coöperative or mutually helpful relations; and that (iii.) the vast, vague, complex business of conducting social life is broken up into a multitude of specific acts to be performed and of specific goods to be delivered, at definite times and definite places. Hence it is hardly surprising that one school of social moralists has found in the conception of free contract its social ideal. Every individual concerned assumes obligations which it is to his interest to perform so that the performance is voluntary, not coerced; while, at the same time, some other person is engaged to serve him in some way. The limitations of the contract idea will concern us later.
2. The Permanent Voluntary Associations.—Partnerships, limited liability corporations, guilds, trades unions, churches, schools, clubs, are more permanent and comprehensive associations, involving more far-reaching rights and obligations. Societies organized for conversation and sociability or conviviality, "corporations not for profit," but for mutual enjoyment or for benevolent ends, come under the same head. Most significant are the associations which, while entered only voluntarily and having therefore a basis in contract, are for generic ends. Thus they are permanent, and cover much more than can be written in the contract. Marriage, in modern society, is entered into by contract; but married life is not narrowed to the exchange of specific services at specific times. It is a union for mutual economic and spiritual goods which are coextensive with all the interests of the parties. In its connection with the generation and rearing of children, it is a fundamental means of guarding all social interests and of directing their progress. Schools, colleges, churches, federations of labor, organizations of employers, and of both together, represent other forms of permanent voluntary organizations which may have the most far-reaching influence both upon those directly concerned and upon society at large.
3. Right to Use of Courts.—All civil rights get their final application and test in the right to have conflicting rights defined and infringed rights remedied by appeal to a public authority having general and final jurisdiction. "The right to sue and be sued" may seem too legal and external a matter to be worthy of much note in an ethical treatise; but it represents the culmination of an age-long experimentation with the problem of reconciling individual freedom and public order. No civil right is effective unless it carries with it a statement of a method of enforcement and, if necessary, of redress and remedy. Otherwise it is a mere name. Moreover, conflicts of civil rights are bound to occur even when there is good faith on the part of all concerned, just because new situations arise. Unless there is a way of defining the respective rights of each party in the new situation, each will arbitrarily and yet in good faith insist upon asserting his rights on the old basis: private war results. A new order is not achieved and the one already attained is threatened or disrupted. The value of rights to the use of courts resides, then, to a comparatively small degree, in the specific cases of deliberate wrong which are settled. What is more important is that men get instruction as to the proper scope and limits of their activities, through the provision of an effective mechanism for amicable settlement of disputes in those cases in which rights are vague and ambiguous because the situations are novel.
Classes of Wrongs and Remedies.—Infringements upon rights, such as murder, theft, arson, forgery, imply a character which is distinctly anti-social in its bent. The wrong, although done to one, is an expression of a disposition which is dangerous to all. Such a wrong is a crime; it is a matter for the direct jurisdiction of public authority. It is the business of all to coöperate in giving evidence, and it may render one a criminal accomplice to conceal or suppress evidence, just as it is "compounding a felony" for the wronged individual to settle the wrong done him by arranging privately for compensation. The penalty in such cases is generally personal; imprisonment or at least a heavy fine. The violation may, however, be of the nature of a wrong or "tort," rather than of a crime; it may indicate a disposition indifferent to social interests or neglectful of them rather than one actively hostile to them. Such acts as libels, trespasses upon the land of another, are illustrations. In such cases, the machinery of justice is put in motion by the injured individual, not by the commonwealth. This does not mean that society as a whole has no interest in the matter; but that under certain circumstances encouraging individuals to look out for their own rights and wrongs is socially more important than getting certain wrongs remedied irrespective of whether men stand up for their own rights or not. Then again, there are civil disputes which indicate neither a criminal nor a harmful disposition, but rather uncertainty as to what the law really is, leading to disputes about rights—interpretations of a contract, express or implied. Here the interest of society is to provide a method of settlement which will hinder the growth of ill will and private retaliation; and which also will provide precedents and principles that will lessen uncertainty and conflict in like cases in the future.
Peace and tranquillity are not merely the absence of open friction and disorder. They mean specific, easily-known, and generally recognized principles which determine the province and limits of the legitimate activity of every person. Publicity, standards, rules of procedure, remedies acknowledged in common, are their essence. Res publica, the common concern, remains vague and latent till defined by impartial, disinterested social organs. Then it is expressed in regular and guaranteed modes of activity. In the pregnant phrase of Aristotle, the administration of justice is also its determination: that is, its discovery and promulgation.