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chapter 17: On the Origin of Civil Society, or the Original Contract 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael [1724]

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Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).

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chapter 17

On the Origin of Civil Society, or the Original Contract1

I do not know why the distinguished jurists Titius and Barbeyrac reject the fundamental cause of the origin of civil society given by Pufendorf;2 certainly they put nothing equally probable in its place.3 I do not doubt that crafty and ambitious men used their arts to promote the institution of new societies, no doubt promising themselves leading places in it. But I ask what arts they could have used, and with what success, if they were not able to give reasons for their schemes which seemed persuasive to the people? In fact nothing can be more probable than what has been advanced by Pufendorf on this subject. Let those who talk of force as the origin of society consider whether they are not assuming the existence of the very thing whose origins they are seeking, namely a civil society, and one, at that, which is strong enough to conquer its neighbors and bring them into subjection. This is an error which they should be particularly careful to avoid as they have accused our author of committing it. And surely it is easier to conceive that before societies had been formed at all, men might be constantly harassed by troublesome neighbors, beaten, robbed of their property, and thus compelled to form civil societies as the most certain refuge against these evils, than to suppose that a permanent yoke could be imposed upon them against the will of most of them. What the distinguished commentators find incredible and without foundation in history—that in the beginning a great crowd of men assembled together, promptly debated the evils of their condition and the most effective means of escape, and finally came to a unanimous decision that they must make a civil society, of whose character and regular shape they already had a perfectly clear idea— none of this is required by Pufendorf’s doctrine. He never dreamt that those first specimens of civil society would be complete and finished in every respect, with a full complement of citizens, a regular form, and appropriate laws. See Locke, Second Treatise of Government, chapter 9. [II.5.7.i]

The process of agreement

In order to establish a civil society and institute a civil government, it is abundantly clear from the principles set out above that the consent of the citizens is required. But it is legitimate to doubt whether this consent must always be given in the order described.4 And the author himself did not wish to insist on it. If one would establish a complete civil society (civitas) in a way which provides some guarantee that it will last, I admit that it can only be constituted by a double obligation, one, of the citizens with one another, the other a mutual obligation of the ruler and his subjects. And these obligations are in this case independent of each other. The first agreement (pactum) described above is particularly relevant to producing the first obligation; the second produces the second obligation (but presupposes an intermediate decree, when preceded by a bare first agreement). I therefore acknowledge that no such civil society can be instituted without some action which would have the force and the efficacy of the three acts just mentioned.

But this can be done in two ways: either quite explicitly, by three successive actions in the order described by the author; or, more summarily, by one act which has the force of all the actions described above in generating the two obligations. In the former case it is evident that each of the agreements produces its own obligation and does so permanently. Thus the distinguished commentators whom we have so often cited, have little reason to say that the first agreement is to the second merely as a temporary platform or scaffolding is to the construction of a building.5 The author puts it much better when he attributes to the permanent efficacy of the first agreement the fact that when the king dies in an elective monarchy, or the royal family becomes extinct in a hereditary monarchy, the subjects remain bound by the civil bond which obliges them to manage the arrangements for their own safety and security with their own collective wisdom and initiative. But it is also possible, as we have said, that both obligations can be formed by one agreement,6 and that a complete civil society can be instituted in this way. The author concedes to be sure in his work Of the Law of Nature and Nations, VII.II.8, that in a popular republic the second agreement is not so evident; but he argues that even here the second agreement needs to be fully acknowledged as the basis of the obligation by which individual citizens are bound not only to obey the orders and regulations which issue from the collective assembly (though this might have been inferred from the first agreement), but they are also bound (by the second agreement) to preserve the republic to the best of their abilities. But why should it not be equally the case that individuals enter into an agreement with one another in founding a republic in such a way that each subjects his will to the will of all and each also undertakes to hold public office when required? In this way a complete democracy might be formed by a single contract, or at least by a contract of a single kind.

Moreover Pufendorf himself recognizes in the passage cited above that a monarchy can be instituted without any prior agreement among the citizens themselves by means of a single agreement, that is, by an agreement made between the monarch and his future subjects. Yet in order to establish by this means a civil society which will have a long duration, the prince should be considered as requiring from each individual subject for the sake of the new state not only allegiance to himself as ruler but also allegiance to his fellow subjects and to the whole state (civitas) so that it may serve the ends of civil society (civilis societas). In this case the single contract which the ruler enters into with his subjects has the force of both the first and the second agreements described by Pufendorf. This corresponds to the procedure, recognized by everyone, whereby in a state already established, new citizens are admitted by just such a single agreement made with the sovereign, tacitly or expressly, which obliges the newcomer not only to the sovereign but to the whole state and to each of his fellow citizens.

A complete civil society (civitas perfecta) can therefore be instituted in either of these two ways: by means of two agreements with an intermediate decree which could also be included in the first agreement, or by means of a single agreement. In the former case the citizens are obligated, first as individuals to each other, then all together as a body to the sovereign; in the latter case individuals are obligated to the sovereign at the same time as they are obligated to each other. Some version of the former may seem most natural, at least when it is a government of one or of a few which is being instituted. For just as government can scarcely be conferred by separate individuals upon a few men, unless those few men are united with each other by a previous agreement, so it is not easy to understand how government is conferred by separate individuals upon one man, unless he already has or is on the point of having a suitable number of subjects. If he is said already to have subjects, the state is assumed to be already instituted, but our inquiry is precisely about its earliest institution. If on the other hand he is supposed to be merely on the point of having subjects, we shall get a more accurate view if we ask what factors his expectation could be based on and what those factors should be thought to have contributed to the acquisition of civil government.

First, inasmuch as the regular and peaceful condition even of a simple family requires that those who live in it do not settle their differences by force when a dispute arises among themselves, and do not defend their rights individually when disputes arise with outsiders, it follows that anyone who enters a domestic society (even though he enters that society not so much to protect his rights as to satisfy his needs) seems to allow to the head of the household something akin to civil government to be exercised over himself and on his behalf. Further, since one household is incapable of defending itself against outside forces, and since a head of a household does not seem to be intending to share his right with others simply by admitting them to his family, newcomers are understood to be agreeing, so long as they remain in the family, to subject themselves to the civil government to which the head of the household chooses to subject himself and his property. Much more so when a household is already subject to a civil government, anyone who enters such a family or remains in it as an adult, is understood to subject himself by his own consent to the same government. In their turn, in all these cases, they stipulate for protection from the government to which they have subjected themselves.

Second, such ownership of things as derives from the original modes of acquisition includes the power to dispose of them as one pleases, provided they serve the uses for which God has granted them to men. Thus anyone who acquires full and unimpaired ownership of land (dominium soli) can rightly require that no one may live on that land unless he is willing to recognize its ownership as his own sovereign civil government. Further, any landowner may transfer this right, which is called government of land (imperium soli), to someone else, while retaining ownership in other respects. When such a transfer has been made, neither the owner nor anyone else can rightly live on that land or possess it without conducting himself as a subject of that other person. And someone who is an owner with full right can transfer the vulgar ownership, as they call it, to others while retaining the government to himself.

Hence we may see how provision is made for the strength of societies and the duration of civil governments notwithstanding the natural liberty of individual men. For the use of the land to which men are connected by different sorts of obligations is closely related to the ties of civil obligation. And anyone who is born in a land and remains there as an adult, and anyone who comes to live in a land, excepting those who come declaring war, must be understood to have given their tacit consent to that obligation.

Thus we may understand very easily how even before larger societies were formed for common defense, one head of household could stand out among his neighbors, because of the number of his dependents and the extent of his estates, and seem to be marked as the most suitable leader and sovereign to submit to, and to entrust their own safety and the security of their goods to him, provided he was not deficient in a sense of justice, and particularly if he possessed superior endowments of mind and body. It is unlikely, to be sure, that all these qualities, so far as they could be found in this dispersed condition of mankind, would be sufficient to persuade any head of a household to submit to another before provision was made by agreement that other heads of households who might also enjoy the benefits of entering civil society would do likewise. Therefore it does not seem far from the truth that in laying the first foundations of civil societies, an appropriate number of heads of households first bound themselves together and then jointly conferred the government on the one whom they wished to adopt as their sovereign. Thus the earliest specimens of monarchical government may be said to have been produced by two contracts rather than just one. But the decree whose purpose was to determine not only the form of government but also the person of the ruler could easily have been included in the first agreement.

I cannot then conceal my astonishment that those distinguished men, Titius and Barbeyrac, should have described such a formation of the original civil societies as a myth, even though they generously allow that new civil societies can be and indeed must be established in the manner described by our author. I am certainly unable to discover any difference between the first and subsequent civil societies in this respect, except perhaps that it seems more credible to apply what the eminent men say about force to the formation of any state other than the first. The appeal to the evidence of history in this case is beside the point, since the first examples we read of, of the use of that kind of force, presuppose large multitudes of men already united under civil government.

However this may be, the conclusion is clear. Mutual obligations between citizens themselves or between a sovereign and his subjects can only be founded in consent, given expressly or tacitly, directly or indirectly, in one or in several stages. And consequently, those who set about to prove from the records of history that a legitimate civil government can be established without the consent of the citizens are playing a silly game and setting themselves up for deserved ridicule. For in every example which can be adduced, they must either allow that this consent must have been given in some manner, although perhaps not noticed by historians, or they must acknowledge that the government was unjustly usurped. Unless they advance some other legitimate title in which civil government may be founded! And this they will never be able to do.7 For it is clear from what has been said above that neither the power of the father (patria potestas) nor seizure in war can provide such a title. One must be careful then to keep in mind the distinction between civil government (imperium civile) properly so called, which is government over men, and government of land or territory (imperium soli), which, as we said above, naturally inheres in land ownership and can be transferred by consent of the owner. On this whole argument see Locke, Second Treatise of Government, chapter 8, and Grotius, On the Rights of War and Peace, I.III. [II.6.9.i]

[Pufendorf defined a civil society or state (civitas) as a “compound moral person” whose will is constituted by a union of wills (in the tripartite original contract outlined above), and this will must be considered the will of all. Accordingly, it may employ the powers and capacities of all its subjects to secure peace and security (II.6.10; cf. Pufendorf, Of the Law of Nature and Nations, VII.II.13, n. 1, p. 641). Carmichael comments:]

The illustrious Titius makes an unwarranted criticism of this definition on the grounds that it confuses civil society with the sovereign ruler.8 But it is certain that the will of the sovereign is itself the will of the civil society when the sovereign acts within the limits of the power granted to him on matters consistent with the ends of civil government. In fact the will of a civil society as a source of public actions expresses itself through the sovereign. Thus it is not surprising that [Pufendorf] attributes to the will of society what the illustrious Titius allows to be true of the will of the sovereign. A civil society therefore, may be defined, more briefly and no less aptly, as an appropriate number of men, joined in a union of their wills and resources under one supreme ruler, for their mutual protection and security. [II.6.10.i]

[The will of the sovereign power may be exercised by one man or by an assembly, depending on the institution in which sovereign power has been invested (by the original contract). Thus Pufendorf observed that, where sovereignty is invested in a council or assembly, the will of a society is determined by a majority of the members of that assembly. And when the votes of those members are equally divided then nothing is done. Carmichael elaborates upon these procedures:]

When the question is simply whether something should be done or not done, and the votes are equally divided, then the negative opinion prevails, at least for the time being. Such a determination does not have the force of a decree, however, and would not prevent the same question from being deliberated in the same council anew and decisively. Similarly, in judgments [made in courts of law] it is normally accepted that the defendant has been acquitted when the votes of the judges are split equally. Once acquitted he may henceforth oppose a claim of judgment given against the same action or accusation. From these considerations it may be understood why, when one question is included in another, and both questions propose something positive, then the lesser proposal prevails, when the votes are equally divided (see Justinian, Digest, XLIV.1.38). But in most courts and assemblies in our country, an equality of votes is avoided in the accepted manner, by allowing the president to cast a deciding vote, when the votes are split equally. [II.6.12.i]

[If there are several proposals before an assembly, that proposal will prevail which has a plurality of votes] despite the fact that it may have fewer votes than the rest taken together. But Grotius rightly advises that when part of a proposal is contained in another, different opinions should be taken together in those parts on which they agree (II.V.19). Moreover, when none of the opinions is contained in another, one may take the precaution of resolving a question which consists of several parts into several two-part questions, so that no decision which is not agreeable to the majority may be regarded as a decree of the assembly. [II.6.12.ii]

[Pufendorf had observed (1) that the supreme ruler of a society may be called a monarch, a senate, or a free people; (2) that the rest are called subjects or citizens; and (3) that citizens may be either native or naturalized. Carmichael’s comments on these terms are as follows:]

1. There are various honorary appellations and epithets by which these [holders of sovereign power] can be distinguished. Insofar as they denote a supreme and independent ruler any one of them may be assumed, without detriment to the right of the civil society. Nor can anyone rightly argue about the use of these terms so understood. But insofar as a certain order is supposed among princes and people, or different degrees of dignity are indicated by those terms, they can only be derived from the consent, express or tacit, of the citizens. It is absurd that any one man, whether Pope or Emperor, should claim the power to confer or refuse these titles, even when this has an adverse effect on those who do not depend on him. [II.6.13.i]

2. In a monarchy, all men except the monarch are subjects. In other states, individuals taken separately are subjects. Even those who have the right of voting in a supreme council are subjects, including even the president of such a council, who thus holds the highest office in such a republic. [II.6.13.ii]

3. The distinction [between native and naturalized citizens] is not of great importance, especially in a state of long standing, as Titius rightly observes.9 But it is still more to the point to remark that it is not everywhere that all fathers of families who have settled their fortunes in a state are regarded as citizens, properly so called. Other conditions may be required before a man enjoys the rights of the original citizens. So that men who have fixed their residence in a state and have even been born there are still considered aliens. [II.6.13.iii]

Nature herself requires us to ascribe to God the authorship of civil government for three reasons: (1) Inasmuch as God has granted to man those natural rights whose transfer in part to a ruler constitutes civil government. (2) God has instructed men by the nature of things interpreted by the dictates of right reason that it is a necessary condition of the dignity, peace, and security of the human race when grown to a multitude, that, by the circumscription of their liberty in some respects, they should gather together into states and submit themselves to civil governments. And he has enjoined civil government by the law of nature itself as a mean to these ends. (3) Finally, by the same law, God has defined the obligations which follow from the establishment of civil government among men, and has commanded that faith be religiously observed, especially with respect to the mutual duties of rulers and subjects. For the safety and security of human society depends particularly on these duties. In these three respects, I say, civil government is rightly ascribed to the authorship of God, even while it is constituted directly by men. As has been declared by two of the apostles, government is “the ordinance of God” (Epistle to the Romans 13.2), and it is also a “human creation” (I Peter 2.13).10 Some may prefer to say with Titius that God is the immediate efficient cause of sovereign power, and that the agreement is its sine qua non or occasion.11 It comes to the same thing. For the efficacy of the law’s commands, which we have referred to in the third point made above [in this note], is attributed to God by the illustrious commentator’s own admission with regard to government in the same way as to any other moral entity. Indeed every right and every obligation, whether derived from an agreement, or from human law, or from any other source, should be resolved ultimately into a command of the divine law, as we have already observed above at p. 28.

Some object unskillfully that sovereign power cannot be constituted by agreements in the same way as other rights, because one cannot grant to another what one does not have oneself. And neither individual men, they say, nor a dissociated multitude has majesty or supreme civil power. We freely acknowledge that neither any one man nor all men together could have had joint possession of this power as one moral person, as it exists in a sovereign, until they were united by some agreement. Nevertheless it can be safely affirmed that the seeds of that power lay scattered as it were in the natural liberty of individuals. And when it was conferred by one or several agreements on a sovereign ruler (summus imperans), it came to be called sovereign civil government (summum civile imperium). This will become clearer when we survey the various parts of sovereign power with our author in the following chapter. [II.6.14.i]

[1.] From the notes to bk. II, ch. 5, “On the Impulsive Cause of Constituting Civil Society”; and bk II, ch. 6, “On the Internal Structure of Civil Societies.”

[2.] “… the true and principal cause why heads of households abandoned their natural liberty and had recourse to the constitution of states was to build protection around themselves against the evils that threaten from man to man” (Pufendorf, On the Duty of Man and Citizen, II.5.7, pp. 133–34). The heads of households achieved this by making a series of agreements with each other (ibid., II.6.5–9, pp. 136–37).

[3.] Titius (Observationes, nos. 547 and 555) and Barbeyrac (Pufendorf, On the Law of Nature and Nations, VII.I.6, n. 1) disputed Pufendorf’s account of the origin of civil societies. They opined that the earliest societies were not established by covenant or by general agreement; that they first “plainly owe their rise to the Cunning and Management of some ambitious Mind, supported by force” (Barbeyrac, ibid. [1729], VII.II.8, n. 2). In this light, the first and second of the three contracts which Pufendorf found at the origin of societies were of little importance; it was the third contract between sovereign and subjects which properly constituted a state. Carmichael’s defense of the original contract in this chapter was in large part a response to this revisionist position.

[4.] The process is described by Pufendorf at On the Duty of Man and Citizen, II.6.7– 9: first an agreement to become fellow-citizens, then a decision or decree on the form of government, and thirdly an agreement between the citizens and the government.

[5.] See below, n. 7.

[6.] Carmichael normally uses the word pactum for any kind of “agreement” (see pp. 77–80); at pp. 107–8 he also indicates that he will not make a distinction between pactum and contractus (“contract”).

[7.] Barbeyrac himself was finally persuaded to abandon his objections to the original contract as Pufendorf had outlined it. In the fifth edition of Pufendorf, Of the Law of Nature and Nations (1734), he acknowledged that whatever difficulties the original contract might present for historians, one might suppose that something like the three agreements had “expressly and successively” occurred in order to ensure that civil societies continue to exist during an interregnum, or when the succession in a monarchy is uncertain. He concluded: “I therefore freely retract (“j’abandonne de bon coeur”) what I said, after Mr. Titius (Observationes, no. 555) in the preceding Editions, that this Convention is only, with regard to the second, what Scaffolding is with respect to the building, for whose Construction it was erected.” He refers the reader to Carmichael’s notes on this chapter and to the annotations of Everard Otto (of Utrecht), who followed Carmichael very closely in his own commentary on Pufendorf’s De Officio Hominis et Civis (1728), p. 3, passim, and on the original contract, pp. 342 ff.

[8.] Titius, Observationes, no. 557.

[9.] Ibid., no. 564.

[10.] Carmichael gives both quotations in Greek.

[11.] Titius, Observationes, no. 567.