War and Peace
CONTINUATION OF THE SAME SUBJECT: 3) POLITICAL RIGHT, CIVIL RIGHT, ECONOMIC RIGHT.—GAMUT OF RIGHTS.
Let us summarize some points.
RIGHT, in general, is the recognition of human dignity is all its faculties, attributes and prerogatives. There are thus as many special rights as humans can raise different claims, owing to the diversity of their faculties and of their exercise. As a consequence, the genealogy of human rights will follow that of the human faculties and their manifestations.
The right of force is the simplest of all and the most basic: it is the homage rendered to man for his strength. Like every other right, it exists only under the condition of reciprocity. Just as the recognition of the superior force in no way implies the negation of the inferior, the right which belongs to the first does not destroy that of the second. If the earth is attracted by the sun, the sun is in its turn attracted by the earth and the other planets: by virtue of this double attraction, the center of the whirl is not at the center of the sun, but at a distance proportional to the power of reciprocal attraction of the sun and the planets.
Thus, no matter what the fabulist has said, the right of the strongest is a positive right, and its reason a true reason; the wrong, in all this, comes either from the exaggeration of the right of force, or from the falsity of its application. The lion’s share, in itself, is legitimate. What makes the morality of the fable of the Lion and his three associates, the Cow, the Goat and the Hind, and what constitutes the rascality of the first, is not that he appropriates a greater part because of his strength and his courage, it is that, by a procurer’s trick, making of his quality of being a lion, then of his force, then again of his courage, three identical terms, so many titles to grant to himself a part of the product, and threatening with his claws the associate who dares make a claim to the rest, he pays himself four times for what should have only been counted once.
The right of war derives directly from the right of force. Its object is to regulate combat and determine the effects of it, when, force being denied or its right misunderstood, it becomes necessary, to resolve the difference, to proceed to conflict. This is why, as we have said, war is a form of procedure which by itself creates no right, not even that of force, but which establishes it, puts it in evidence, sanctions it by victory, and adjudges to it its conclusions by making, by the supreme reason of force, antagonism cease.
As much as it is true, however, that antagonism is the law of social life, we say even of life universally, so much can we say that bloody war is repugnant to the social sentiment of man. As bellicose as a nation may be, its first movement, in case of difficulty, is always to avoid, if it can, combat. From this rises the notion of the right of peoples.
The right of peoples has its principle in the consideration that, from State to State, and in certain circumstances, force positively makes right; it is possible, in the case of conflict between two States, to determine à priori, by the evaluation of forces, to which of the two parties the preponderance must belong; consequently to prevent, by an amiable transaction, the decision of war, at the very least to define the effects of victory and to render more equitable the treaty of peace.
If the conflict is of such a nature and seriousness that the solution demands the sacrifice of one of the warring sovereignties, the right of peoples teaches us,—and it is here that it is eminently distinguished from any other right, which makes of it one of the best marked categories of the science of justice,—that this sacrifice can be required by that one of the powers which is believed to be the strongest, and executed by arms. All that which, in international relations, can be reduced to a question of life or death for the State to decide by force, pertains to the right of peoples.
Let us come now to public right or political right.
Political right aims to prevent all types of aggression by the individual against the community and against other individuals, by defining, as much as possible, the rights and duties of citizens towards each other and towards the State, and placing them all under the protection and authority of one public force which is the government.
But there is this difference between the international right and the political right, that the first implies essentially the possibility of the absorption of States by one another, and consequently in case of conflict, the legitimacy of their immolation, while by political right neither the sovereignty of the State, nor the liberty of the citizen can perish; far from that, the masterwork of the constitution is to make them increase unceasingly the one alongside the other and the one by the other. In international right, if the equilibrium of powers cannot be amiably obtained, there will be suppression, by war, of one or more of the antagonistic states; in political right, on the contrary, order is imperiously demanded without it costing the sacrifice of a single liberty or a single life: the proscription, which is, so to speak, the soul of the right of peoples, becomes contradictory here.
Thus the notion of the right of force is always present in the thought of the eternal legislator. It follows it in all of its creation, whether it founds the State or it coordinates the independent nations; and always one encounters it again, except for differences of application, in each of the metamorphoses of the law.
But it necessary to enter further into the spirit of the constitutions, and to show, by the facts, that ubiquity of right and of force. Certainly, everything is not connected, in public right, to force; but everything supposes it, not only as means of action and organ of authority, instrumentum regni, but as principle and source of right, which is very different.
We have seen above, in Chapter II, the patriarchy or patrician class form spontaneously from the just recognition of the right of force. One consequence of that principle has been the formation of the aristocracy or the castes. The idea that force engenders force, that the strong spring from the strong, producing the institution of hereditary nobility:—that is, as I said before, right becoming subjective in man in the name of his most visible quality, force. Thus it is always, at base, force which decides justice, except for the introduction of a new element, the family.
But nobility abuses its privileges: from one side, it is corrupted by power and wealth; from the other, it exploits the plebians well beyond what is permitted by the right force. Soon even the superiority of force, which in the beginning had created the aristocracy, passes to the side of the people; and one sees the nobles, without knowledge of their privilege, demand the benefit of force when they already lack the reality; to speak of their seigneural rights when they no long have anything, neither as individuals, nor as caste, of that which made the seigneury.
This is then revolution, and revolution in the name of force.
Sieyès’ brochure, Qu’est-ce que le tiers État? has no other meaning. Just as all despotism resolves itself, by virtue of force and the right that pertains to it, in aristocracy, so all aristocracy ends in its turn in the bourgeoisie and roture. That is inevitable, and it is just.
Here a new modification of the right of force is produced. By the nobiliary institution the right of force was combined with that of the family; it had become a right by birth: but with the coming of democracy, it becomes a right of numbers or of the majority. The force of collectivity is the point of departure and base of the social contract.
By virtue of that contract, at first purely fictive and tacit, each citizen is supposed to voluntarily abandon a part of his force, his liberty and his property, in order to create a public force, capable of vanquishing all individual resistances, and which insures justice and protection to all. 
Now, to whom will that public force be entrusted? To a magistrate, an elected representative, representing the collectivity, or the major part of the collectivity, which is to say always force. Universal suffrage is, from all points of view, only a peaceful recognition of force, and the representative system, with its law of majorities, a reasoned application of the right of the strongest. The Polish nobility could never understand that transformation of the right of force, accepted by all peoples. At each election of the prince, the Diet voted on horseback; the minority opposing its veto, there was battle, and the most numerous faction was forced to maintain the validity of the election by the defeat of the dissidents.
Certainly, in the law of the majority there is something other than numerical force. There is that principle of common prudence that, in doubtful cases, the opinion of the greatest number is more probable than the opinion of some few, the conscience of the nation than that of one sect. But the majority of opinions will be, it is necessary to note, not very respectable, if they did not express as the same time those of the majority. Now, interests are forces, and, in supposing the opinions of the majority and those of the minority of equal value, it will remain always, in favor of the first, that, in cases of doubt, the most considerable interest must be preferred.
What is it then which, in a republic or a representative monarchy, can motivate insurrection? It is certainly not the consideration, very sustainable in itself, that in matters of right or science numbers mean nothing, and that twenty-five can be right against five hundred. I do not believe that an insurrection ever rested on a grievance of that sort. One has never reproached, that I know of, in the name of the people, a government which had the multitude in favor of it, of having used the right that it held from that multitude, of the right of force. One rises up when the government, like that Charles X, after having lost the majority, wants to act against the majority, to be right against force; or while having the majority it violates the law, lies about the constitution, and calls for more, as a consequence, than it is accorded to it by the right of force.
One observation to enter here is that relative to the choice of the prince, above all to the increase what his power rarely fails to take, despite the resistance of the friends of liberty. At all times the sages have dreamed of placing a sage at the head of affairs and of ruling so well his attributions that, though sufficiently armed to maintain order, he could not act against the rights and liberties of the citizens. We know how rarely this hope has been fulfilled. If the power is elective and the election is left to the multitude, it will most often be a military man, a general illustrious for his feats at arms, who will carry off the votes. Let us suppose that the prince belongs to the civil order, as in the case of heredity: it will suffice that the prince, making war by his generals, triumphs in some campaigns, in order to count the victory his own, as if he had triumphed in person. Then, and in this case as in the first, the victorious chief does not fail to assume more extended powers, higher prerogatives, that nobody dreams of disputing, and that one would challenge in vain.
Such is the prestige of force that, where it exists, the vulgar are included to accept that there is an authority, and consequently a right.
One conceives now how war, which exerts such great action on ideas, exerts one no less strong on public liberties and the constitution of the State. A nation at war is a nation gathered on itself, formed in battalions, and which no longer obeys anyone but the military chief, lives only a governmental and central life. The man who leads the war is a being so highly placed that all involuntarily obey him; he becomes the judge of others, representing right as well as force, at once legislator, judge and general. If he beats the enemy, everyone adores him; the power that he has been given by combat remains with him: there is the master.
What of the precautions taken, in Rome, in order to prevent the usurpation of the dictator, sovereign for fifteen days, for one year at most! Yet Marius and Sulla knew how to make themselves masters; Caesar became one in his turn: there have been masters for six hundred years. In our times, one escapes military dictatorship by constitutional and hereditary monarchy; but that is on the condition, in addition, of reserving to the bourgeoisie the exercise of political rights. As soon as the plebs enter the arena, they make a chief for themselves according to his genius, that is according to his force. After a republican interregnum, Cromwell succeeds, by puritan democracy, to Charles I; Bonaparte, Jacobin plebs, to Louis XVI.
Under the Roman emperors, heredity, somewhat favorable to the soldiers and the people, failed to establish itself. The reason was that in Rome there was not the quality of being an heir which served to make the emperor recognized, it was, on the contrary, the title of emperor, earned or already obtained, which came to consecrate the filiation. Titus and Marcus Aurelius succeeded without difficulty, one to his father Vespasian, the other to his stepfather Antoninus Pius. But Titus and Marcus Aurelius, before being associated with the empire, were illustrious from their services; parentage served only to give to their military title one more illustration. Every victorious general was, among the Romans, by fact and by right imperator; if Augustus had only his birth, it was rare that he did not succumb sooner or later before an imperator more real. That is what happened to Caligula, Nero, Commodus, Elagabal, Alexander Severus, Gordien the younger and others.
There are truly only two ways for a country to shield public liberties from the encroachments of force and ward off despotism. It is to organize, as in England, a hereditary monarchy, acting by agents responsible before a Parliament, and to reserve the electoral privilege to the bourgeoisie; or else, if the constitution of the country is established on universal suffrage to confer to the multitude, with the enjoyment of political rights, that of economic rights, which means equality of education and fortune.
If it was permitted to speculate on the future according to analogies with the past, I would say that Napoléon III having been made emperor, not by military fortune, but by heredity, and the French nation rejecting praetorianism, it seems inevitable, for that double reason, that the present empire becomes a parliamentary monarchy. But, on the other hand, that same head of State holds his right from universal suffrage, and his government having thus far had for its principal object to suppress the economic revolution, it appears equally impossible, for that double reason, for the parliamentary monarchy to reestablish itself; and it is exactly that which makes the originality of the situation. Fata viam invenient.
Just as the political constitution rests, in the last analysis, on force, it also has force for sanction: in which public right comes to be confused with international right. Every nation, indeed, incapable of organizing itself politically, and in which power is unstable, is a nation destined to be consumed by its neighbors. As those who do not know how or do not want to make war, or who would be too weak to defend themselves, have not a right to occupy a place on the map of States; … it is necessary that they submit to a suzerainty. Neither religion, nor language, nor race, are anything here; the predominance of force dominates all and makes law. Right of force, right of war, right of peoples, and political right thus become synonyms: where force is lacking, government does not hold, and nationality still less. A terrible right, you say, regicidal right, in which we hesitate to recognize a form of justice. Eh! no; no vain sensibility. Remember that the death of the State does not lead to that of the citizens, and that there is no worse condition for them than a crumbling State, torn by factions. When the homeland is resistant to liberty, when public sovereignty is in contradiction with that of the citizen, nationality becomes an opprobrium, and regeneration by an outside force a necessity….
A few words only about civil right and economic right.
Civil right is made up of the ensemble of rights of man and of citizen: right of family, rights of property, of inheritance, of labor, or exchange, or habitation, etc., which are all placed under the protection of the public authority, subordinated to the public interest, and have their sanction in the right of force.
Property, for example, as it tends more and more to be legitimated by labor and by the just relation between land-rent, interest on capital and wages, does not come down less obviously to the right of force, founded as it is originally on the right of first occupation or conquest, and subordinated the condition, by the proprietor, to exploit in that of good father, to the better of the interests of his family and the State. If a proprietor, said Napoleon I, could not cultivate or make cultivated his lands, if he left them wild and abandoned them, I will repossess them by authority and give them to the most capable and best deserving. Whoever cannot exploit, thought the conqueror, is not worthy to possess; in other words, whoever has no force has no right. Such is, indeed, the principle for property in land. It is also only by a subsequent convention, a kind of legal fiction, supported by the State, that the proprietor can possess nominally and exploit by the intermediary of a tenant farmer. The nature of right, like that of things, does not allow that abstract property; society makes effort against it; and every day we see property fall again from the hand of the rentier into those of the cultivator.
Thus, from citizen to citizen, from family to family, from corporation to corporation, from society to society, is transformed, by the mutuality of guarantees, the right of force. It is necessary, in some way, to uncover it in order to make it reappear. It is no longer sense except now and then, in an indirect manner, in the work for hire contract, in the sponsorship, etc., where the superiority force, of labor, of capital, of industry, leads to the superiority of wages. As if force, animal thing, disgraced intelligent and free humanity, the legislator disguises it as much as possible; one says that, reached to that height, he judges the right of force as little worthy of the well brought up man as wrestling and boxing. It is the fleur-de-lis which renounced the bulb from which it has come. But that which seems improper to the citizen is glorious to the prince. The right of force is the prerogative of sovereignty, the symbol of justice. In this regard, forbidden to anyone to claim it and to take advantage of it: Be careful if you touch it! Under the feudal system, the right of force had been confiscated only in part; part was left to the baron, who, by virtue of that right of force, also enjoyed the right of war and the right of justice. The Revolution has completed the work begun by the kings by imposing an eternal silence on feudal quarrels, and by putting, under the relation of the right of force, the great feudal lords on a level with their serfs.
Moreover, in the same civil order, the right of force is far from having said its last word. It along can end the debate raised some years ago between the class called the bourgeoisie which will go … and the working and salaried class which comes always. It matters little if that will be by a battle or by consent to a constitution: it is necessary that the regime of labor, of credit and of commerce, change; that wages and value, which are the freest in the world, come to police themselves. Certainly, one will not deny that muscular force be happier and more dignified before justice than the metal which serves as an intermediary in exchange; labor more honorable than traffic, lending and agio; the working masses, preserved by labor and frugality, more moral than the parasitism which exploits them. Force, and right with it, are to the arms, to labor, to the masses; yet, neither the arms, nor labor, nor the masses, have their account.
It is when the citizens, making an assessment of their interests as laborers, and comparing those with the interests of the privileged, of entrepreneurs and capitalists, will have recognized the superiority of the first to the second; when the petit bourgeois, small proprietor, the small industrialist, like the peasant, the clerk and the laborer, will find that they have more to gain by work than by rent and agio; it is then that the people, the industrial democracy, will destroy, in the name of right of force, synonym of the right of labor, synonym of the right of intelligence, la suzerainty or money, will balance rent and tax, will restore property to its just limit, change the relations of labor and capital, and will create, as the crowning of the edifice, economic right. And that will be justice; force, once more, will make right.
If, now, from the point of view of force, so new in jurisprudence, we consider the development of right in its principle categories, we discover there a series or that would have filled with joy the heart of Fourier:
1. Right of force;
2. Right of war;
3. Right of peoples;
4. Political right;
5. Civil or domestic right;
6. Economic right, which subdivides into two branches, like the things that it represents, labor and exchange;
7. Philosophical right, or right of free thought;
8. RIGHT OF LIBERTY, or humanity, formed by war, by politics, by institutions, by labor and commerce, by the sciences and the arts, is no longer governed by anything but pure liberty, under the single law of reason.
In that gamut of rights, force makes the bass note, and liberty is the octave. The dominant varies according to the character of the race and the degree of civilization: patriarchal or family right among the nomads; right of property, or landed patricians, among the ancient Romans; right of labor, in the industrial towns of the Middle Ages, in Italy and Flanders; mercantile right at Tyr, Carthage, Athens, Corinth, Marseille, and in modern England.
The tendency is for pure liberty to become the synonym of pure right: it is the ideal of civilization, the most elevated expression of force.
We said in the first book:
War animates society. Its thought, its influence, are present everywhere. It is war which has given the impetus and the form to all our powers, to religion, to justice, to philosophy, to the liberal and the useful arts. War has made society what it is, to such an extent that, if one left aside war, from his ideas and his work, one could no longer imagine what civilization would be, what the human race would be.
These propositions, broadly presented, although in a small number of pages, have acquire in this second book, a mean serious in other ways. In discovering that war contains a moral element; that it implies, in its notion, in its motives and its aim, an idea of right; that this it resolves into a veritable judiciary mandate; that such is the opinion of all people, the intimate faith of the human race; we have understood the key to that mysterious and gigantic phenomenon and the more that formidable apparition had seemed to us hitherto to swallow our species, the more we have sensed that it suddenly lifted us up.
Thus all of our efforts have tended to determine, in a precise manner, that moral element. For that, we have had to triumph over the universal disapproval of the authors, in the eyes of whom war is purely and simply an evil, not to say the evil, and the right of force the negation of all right and all justice. We have demonstrated that on that hypothesis, inherent in the idea of war, of the reality of a right and the legitimacy of a jurisdiction of force, all the authors, jurists and publicists, philosophers and poets, divide radically, and unanimously, from the faith of nations. Those who have recourse to force, as a necessary sanction of right, do it only unwillingly, by invoking a principle foreign to right, the principle of utility, or by implying that justice having its sanction, like its principle, only in God, humanity being fallen, the sanction of force is the sign of our meanness and the instrument of our punishment. The right of force, they all say, is not a right; it is the negation of right. From which it results, if the authors speak true, that war had in its turn nothing juridical, to which they willingly agreed; but also, which they have not realized, that the right of peoples would be a vain phrase, political right a fiction, and, finally, civil and economic right conventions without guaranties as without principles.
An opposition so marked between universal sentiment and the authority of the school, the disastrous consequences entailed by the theory of the jurists, as much for the certainty of principles as for the conduct of societies, demand that we take up again at its base the examination of the problem. Now, the result of that examination has been, contrary to the talk of the school, but in agreement with the belief of the nations, in accord with the hopes that have given rise in us to that grandiose phenomenology of war, that as much as it is certain that justice is a real faculty and positive of man, so much is it true that there exists a real and positive right of force; that that right is subject to the same conditions of reciprocity as the others; that it has, like all others, its specialty, and consequently its limits, its competence and its incompetence; that its most ordinary application, since the formation of the first societies, takes place between States, whether it acts for their formation and enlargement, or for their division and their balancing; finally, that war is the form of action of the right of force, since it along has for aim, in the determined cases, to pursue the claim of the prerogatives of force, by rendering, through combat, force itself manifest. Like the right of property and the right of labor, like the right of intelligence and that of love, the right of force is one of the rights of man and of the citizen, the first of all in the order manifestation; only, by the effect of the social, the citizen is delivered into the hands of the prince, who alone finds himself invested, in the name of all, with the right of war and the right of justice.
The right of force, hence that of war, once recognized as real rights, restored in legislation and in science, the deduction of other rights no longer poses the least difficulty. The right of peoples aims to legalize, so to speak, war; to predict and to regulate its effects, if need be to prevent it, by defining in advance the relations of powers and their prerogatives. Political right rises from the substitution of a public force, acting for all, by force scattered to individuals. Civil right and economic right have for their point of departure the equality of persons before the law, and the mutual recognition of all the rights which can result from their respective attributes and from the free exercise of their faculties, as these attributes and faculties serve in the deployment of their forces.
All is then soon perfectly coordinated; everything is in order, everything holds, follows and makes a body. We have a principle, a base of operations, a perspective, an aim and a method. No more schism either in the home or in society; force and right, mind and matter, war and peace, are based on a homogeneous and indissoluble thought.
We know now what causes the enthusiasm of nations for battles. We can say by what mystery religion and ware are two expressions, one in the real and the other in the ideal, of one single nature and law; why the thought of war breathes in all poetry and all love, as in all politics and all justice; how it has come to be that the virile ideal, among all peoples, is a composite of magistrate, priest and warrior; how it comes, finally, when societies are corrupted by a long jouissance, that they are regenerated by war. It is that, as we presented it at the beginning of the first book, there exists in war a moral element; it is that war is the upholder of the law, and of all the forms of justice the most sublime, the most incorruptible, the most solemn.
It remains to see at present in what manner war, which seems to us so normal, so glorious, so fruitful, fulfills its mandate; how it behaves in its summons, in its enforcements, let us say the word, in its proceedings; how far extends its remit, its competence; what is the value of its judgments; what guarantee of its justice does it offer to the nations; in what abuses it can fall through the immoderate use of force, and what consequences can result, for the universal order, from its prevarications. For we still possess only half the truth; after having found the principle of the sublimities of war, it remains for us to discover the reason for its horrors.
It is this that we propose to investigate in the next book.
 This manner of interpreting the social contract is very different from that of Rousseau. According to the philosopher of Geneva, the sovereignty of the people proceeds from the gathering of individual wills, freely expressed; from which it follows that the right of man, origin of the right of the nation, has its seat in the will of man. But it is clear that the union of 100,000 electors could not juridically invalidate the will of one alone, nor found, consequently, despite its claims, a legitimate sovereignty. My right, expression of my will, is indestructible and inalienable; and if I refuse, there is absolutely nothing, in the agreement of my 100,000 contradictors, which drowns out my refusal. Thus a single man could, opposing his veto to the will of the majority, prevent the law from passing, paralyze the action of the government, and make the sovereign impossible. The example of the Poles, cited below, demonstrates it. The absurdity of that result proves the falsity of the purely metaphysical theory of Rousseau. I know well that in the end one will declare the right of the majority superior to that of the minority, which means simply that one will appeal to force. But, unless force has right by itself, one will only have exerted violence; that would be a usurpation, not an act of justice. Thus it is the right of force, the respectability inherent in force, as a human faculty, which forms the first foundation of right, the first echelon of the legal and political order. One will object that that which has the force, the people, cannot very well have reason at the same time: in that case, would it be necessary to always say that it is sovereign? To that I respond, always by virtue of the same principle, that force has right only insofar as it is human; that a force deprived of intelligence is nothing more than bestiality, an instrument a the disposition of the intelligent power that knows how to seize it, and with which that power will contain and enslave the people. This is what has been seen at all times, it is this that happened in 1848, when the people, convened in electoral assemblies, named reactionary assemblies, and what is evidenced in a more sensible manner still since the coup d’État. Force, I repeat, only has right if it is human, which is to say intelligent, moral and free. From the moment that it is reduced to the raw state, it belongs to that which seizes it, and will count to its profit.