The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction.
• Biographical and Critical.
• Author’s Preface to the First French Edition.
• Author’s Preface to the English Edition.
• Book I.: Evolution and Retrogression.
• Chapter I.: Social Retrogression.
• Chapter II.: Socialist Programmes.
• Chapter III.: Character of Political and Intellectual Progress.
• Chapter IV.: Character of Social Progress.
• Chapter V.: The Evolution of Property.
• Chapter VI.: Doctrinal Contradictions of the Socialists.
• Chapter VII.: Practical Self-contradiction of the Socialists.
• Book II.: Socialistic Sophisms.
• Chapter I.: Labour and Wealth.
• Chapter II.: On the Limits of Collectivist Society.
• Chapter III.: The Law of Supply and Demand.
• Chapter IV.: The %u201ciron Law%u201d of Wages.
• Chapter V.: Integral Wages.
• Chapter VI.: To Each According to His Needs.
• Chapter VII.: The Abolition of Wages.
• Chapter VIII.: Machinery.
• Chapter IX.: Excessive Production.
• Chapter X.: Economic Crises.
• Chapter XI.: Cheapness.
• Chapter XII.: The Game of the Gullible.
• Chapter XIII.: Socialistic Methods.
• Chapter XIV.: Facts Compared With Socialist Statements.
• Chapter XV.: Redistribution of Wealth.
• Book III.: Socialistic Legislation.
• Chapter I.: Putting Socialistic Sophisms In Force.
• Chapter II.: The Regulation of Child Labour.
• Chapter III.: Female Labour and the Law.
• Chapter IV.: Compulsory Idleness of Lying-in Women.
• Chapter V.: National Labour and Foreign Workmen.
• Chapter VI.: Trade Syndicates.
• Chapter VII.: Registry Offices.
• Chapter VIII.: Nature of %u201clabour Laws.%u201d
• Book IV.: Socialistic Morality and Respect For the Law.
• Chapter I.: Contempt For the Law.
• Chapter II.: Servile Labour and Free Labour.
• Book V.: Strikes and Social War.
• Chapter I.: Cost and Consequences of Strikes.
• Chapter II.: The Causes of Strikes.
• Chapter III.: During the Strike.
• Chapter IV.: Social War.
• Book VI.: Responsibilities.
• Chapter I.: Parliament and Strikes.
• Chapter II.: Subsidies to Strikers.
• Chapter III.: The Executive, the Judicature, and Strikes.
• Chapter IV.: Liberty and Anarchy.
• Chapter V.: The Socialism of Employers.
• Chapter VI.: Militarism, Protection, and Socialism.
• Conclusion.

CHAPTER IV.

CHARACTER OF SOCIAL PROGRESS.

Slavery—Absorption of Personality—Corporeal and Tributary Serfdom—Personal and Pecuniary Obligations—Contract and the French Civil Code—Specification of Services—Freedom of Labour—Respect for Individual Liberty—Commercial Companies—Separation of the Man Contracting from the Thing Contracted for—Joint-Stock Companies—Nature of Contract—Substitution of Contract for Obligations Imposed by Authority.

Does the economic point of view differ from that of personal right? In primitive civilisations, the work is done by the women and slaves, the stronger men reserving enjoyment to themselves, and unconditionally imposing all effort upon the weaker. One of the most certain signs of human progress and evolution is the enfranchisement of woman from this servitude. The most revolting feature in slavery is that one man may belong to another man, thus having no control over his own destiny. He is property, in his entirety. No distinction is made between his personality and the services he can render, or the tasks which may be required of him. And these are the stages of progress: after slavery, serfdom; after the corporeal serf, the tributary serf, whose obligations, instead of being unlimited are defined, and, instead of being personal, consist in the obligation to perform certain defined services, or to contribute certain things. This distinction between direct personal obligations and obligations in terms of commodities, already established by Roman law, was, whatever Bentham may have said, one of the great juridical facts of human progress.

In ancient law there is no contract, nor any word corresponding to it. The father of the family commands. He does not deliberate; there is no reciprocity of services discussed or agreed upon, with a penalty for its non-execution. We do, however, find contracts amongst traders like the Athenians; and it is commerce which made them the most Individualistic people of antiquity.1 The ship-owner of the Piræus entered into treaty with foreigners for merchandise. He made his own arrangements without asking leave of his Government. He made contracts, and contracts for specified goods and specified services quite outside any question of his own person. In Rome, contract became more and more real, and less and less personal in proportion to and concurrently with the development of the idea of right. Hobbes, Grotius, and after them Rousseau, believed that by contract people might be bound to one another—that one person might thus deliver up a part of his existence, of his life, of his being to another, and that another might take possession of it. This is still true in the marriage contract, but it is true only of marriage now; and the law of divorce has weakened even this personal contract.1

In the definition of contract, as given by the French Civil Code, there is no ambiguity. According to Article 1101: “A contract is an agreement by which one or more persons undertake to give, to do, or not to do, something to another or others;” and, according to Article 1126: “Every contract has for its object something which one party undertakes to give, or one party undertakes to do, or not to do.” The Code insists upon the real2 nature of a contract. Article 1128 says: “It is only things connected with commerce which can be the object of agreements;” and Article 1129 adds: “It is necessary that a contract should have for its object a thing defined, at least, as to its quality (espèce). The quantity of the thing may be unspecified, provided that it can be determined. The Code is very careful to lay down “that a man can engage his services only for a specified time or undertaking.” (Article 1780.)

This is the very principle of the freedom of labour, demanded by the Physiocrats, and proclaimed by Turgot in his edict of 1776 against the pretentions of corporations, in which the apprentice and the journeyman had personal and undefined duties towards the employer.

In Rome, the insolvent debtor became a slave. He paid in his person because he could not pay in goods. Such was also the case in the system of imprisonment for debt. But now the law of contract holds in complete respect the person of the contractor. From the moral point of view, he must fulfil the engagements he has made; from the legal point of view, “all obligations to do or not to do resolve themselves into damages and indemnities.” (Art. 1142 of the Civil Code.)

The system of civil contracts is based entirely upon respect for the liberty of the individual, and this principle has prevailed in proportion to and concurrently with the development of commercial law. When the Hanseatic League recognised contracts concluded with foreigners, it recognised in the engagement a something distinct from the person who had entered into it, not troubling itself about the colour, race, or religion of the contracting parties.

In companies en commandite, the responsibilities of the sleeping partners with regard to outsiders are distinctly specified and determined, thanks to the labours of Italian jurists. As regards joint-stock companies with limited liability, we, in 1555 for the first time come across (in England) the Russia Company, in which the capital was contributed and employed for a specific set of transactions or operations, the ownership of such funds being transferable without any alteration of the commercial compact. The separation of the man and the thing is so complete that the company always assumes the name of its object.

What do these facts show? The juridical and economic evolution of companies reveals the same characteristics as intellectual, religious, and political evolution. Undefined services, in primitive groups, become clearly defined services as regards both their nature and their duration, this change being consequent on the differentiation of the man who contracts from the thing contracted for, and the agreement being always liable to be cancelled on pecuniary payment for loss occasioned to the contractee. Obligations imposed by authority give place to obligations resulting from contracts, which are valid only through the personal will of the contracting parties.1

[1]This is at the bottom of Mr. Sidney Webb’s effort to depreciate Greece and belaud Rome. See his essay on this subject in “Our Corner.—Ed.

[1]What has weakened it still more in this country is the very recent decision not to enforce “conjugal rights,” and the judgment is the celebrated Jackson case.—Ed.

[2]Real, that is, in contradistinction to personal.—Ed.

[1]See Sir Henry Sumner Maine’s Ancient Law, p. 170.