Question I: Whether right is the object of justice

ALL Theologians, Jurists, and Philosophers hold that Ius is the object of the Virtue of Justice: but one must diligently see which Ius is established as the object of this virtue; and which Virtue Justice is understood to be by us; for each can be taken in many ways.

FOR JUSTICE is taken chiefly in three ways. First, for the habit by which we are made suited to all things equitable, both in order to ourselves, and in order to God and others: thus it is taken by all Philosophers, but more by Theologians, who understand in this sense what is delivered universally in the Scriptures, when someone is named just, namely endowed with all the virtues, which is everywhere met with, where they name Just men heroes, as Genes. 6. Noë a just man Genes. 6. Iob. 1. Eccles. 40. et seq. as the Saintly Doctor observes everywhere. The Doctor interprets it at ad 3. Luca:¹ Make straight your paths, according to 16. Isa. The path of the just is right. Prouerb. 4. I led thee by the paths of equity. So Prouerb. 8. I walk in the ways of justice. So Gregory of Nyssa, lib. de beat. oratione 4. understands it Matth. 5. Blessed who hunger and thirst after justice, in which sense it is taken also by St. Augustine at that place, cited by St. Bonaventure 3. p. Centiloquii, sect. 44. and lib. 2. Pharet. cap. 42. ¹ Editor's note: the print reads 'Ided ad 3. Luca interpretatur id'; 'Ided' is unintelligible and is rendered 'Ideo' (therefore), as a new clause begins.

IN like manner Justice is taken for the habit infused with sanctifying grace, by which one is constituted just, and holy, endowed with all the virtues. So Rom. 3. But the justice of God, by the faith of Jesus Christ, unto all who believe in him. Which is called the justice of God, not formally, but efficiently from God, or the gift of God, as St. Augustine teaches lib. de Spiritu, et litt. cap. 9. and the Holy Council of Trent often inculcates, and gravely defines, as I showed Tract. de Gratia, disp. 2.

THEREFORE we do not take justice in so general a sense, but as it is a particular virtue among the four Cardinal ones, whose proper praise and office is to constitute the due equality between men, as the Saintly Doctor notes in 3. dist. 33. dub. 1. et in quaestionibus passim, et in 4. dist. 15. passim et 3. p. Cencil. sect. 44. et 5. p. Breuil. cap. 4. et lib. 2. Phar. cap. 42. et in Diata, tit. 5. cap. 8.

WISDOM takes it thus, c. 8. where it is said, to teach Soberness, and Wisdom, Justice and Virtue; where it calls Soberness Temperance; for Wisdom it understands Prudence; for Virtue, Fortitude; but it takes Justice for the Virtue of Justice, which is the second Cardinal virtue among those, as Gregory of Valencia notes disp. 5. quaest. 1. puncto 1. after St. Bonaventure in the Commentary on that place.

THIRDLY, in another mode the Saintly Doctor takes it in 3. § dist. 33. dub. 1. litt. et in Diaeta, tit. 5. cap. 31. for the judicial, coercing with punishments; But this is a species of the Cardinal, as I shall say; nevertheless all commonly call it this, when it is said: Justice inquired into Peter, punishes; or: Peter is afflicted in Justice.

¶ Further, Ius also can be taken in many ways.

¶ First, whatever in any mode is equitable, or good, as the Jurist Paulus says l. Ius, ff. de Iustitia, et Iure.

¶ Second, it signifies whatever is conformable to law, as the Philosopher says 5. Eth. cap. 1. In which way St. Isidore said lib. 5. Ethymol. cap. 3. that Law is a kind of species (that is, norm, or idea) of Ius, according to the doctrine of St. Thom. art. 1. ad 2.

¶ Third, it signifies the lawful faculty, or power of doing, or acquiring, or possessing, or alienating something, as the Jurists distinguish between Ius ad rem, which is owed to someone; and Ius in re, which someone also possesses.

¶ Fourth, it is taken for the Sentence of a judge, as the Jurist Paulus has it loco citato.

¶ Fifth, it signifies the same as Lex, that is, the dictamen of prudence, whether natural, or in habit, or the authority for making laws, in which way Ius is divided into the Natural of nations, and Civil, by Ulpian in l. Iuri, et often by St. Bonaventure in 4. dist. 36. quaest. 1. et 3. p. Centil. cap. 44. et other places, cited in the tract. de Legibus.

¶ In none of the said modes, or the others enumerated by Valencia, is Ius taken here, but it is taken for the same as Iustum, through equality with another. Hence Scotus lib. 3. de Iustitia, et Iure, quaest. 1. art. 1. says that Ius, by APOCOPE, is said as it were iustum: Whence also in Greek Ius and Iustum are expressed by the same word δίκαιον. The ethymology of which word Ius properly sounds, to be just through the equality of thing with thing. For, as the Philosopher says 5. Eth. cap. 4. on that account it is called ius δίκαιον, because it is δίχα, that is, divided in two, as if to say bipartite; and what is divided in two is divided into equal parts according to the ratio of discrete quantity, inasmuch as it is divided into one and one. Whence, and Iudex, as Aristotle says in the same place, because he determines the just through the equality of thing with thing, is called Bipartitor. And by this reason Justice is called Equity. Thus Proverb. 8. Mine is Equity, mine is Prudence, mine is Fortitude, as the Saintly Doctor observes ad cap. 8. Sapientiae.

¶ Aristotle also used Ius in this sense cap. 4. when he said: Ius, which is in exchanges, is a certain constant equality according to Arithmetic proportion; but that ius, which is in distributions, he had said cap. 3. according to Geometric proportion.

¶ Moderns labor in this ius, which is the object of Justice, in making it clear; and as I see, Mastrius observes the matter Tom. 2. disp. 7. num. 163. saying, that it is That which constitutes dominion, which is twofold, of Jurisdiction, and of Property. This dominion however is defined by the Jurists: The faculty of using a thing at pleasure, without injury to another. In which definition, says Hurtado disp. 12. de Incarn. sect. 3. a circle is committed; for also in defining injury, they say it is the use of a thing against the right and will of the Lord. Thus Ius is defined through Injury, and this through Ius, which is to run in a circle against Aristotle 5. Metaph. cap. 15. Hence Cardinal Lugo disp. 1. de Iustitia, et disp. 3. de Incarn. sect. 2. num. 42. teaches, that this ius, which is the object of Justice, is nothing else than a certain moral prelation, by which this man is morally preferred to others in the use of this thing, by reason of a peculiar connexion, which the thing has with him. Which explanation Bellutus also embraces disp. 7. de Incarn. quaest 6. art. 1. and Mastrius num. 164. He adds, however, that this prelation must be explained, from what head it arises, namely from the disposition of laws, or the nature of the thing. Thus it is explained a priori.

¶ I indeed, weighing this new invention, find that all of these relapse into the same circle; for the Praelation in the use of a thing is an effect of ius. For each one is preferred in the use of a thing, namely a house, a garment, etc. because he has right to it before others, and so Ius is the fountain and cause of that prelation, and therefore ius is not expressed a priori. Again therefore if you seek the origin of that prelation, it must be taken a priori from ius; and so they walk in a circle.

¶ Tanner therefore disp. 4. quaest. 1. dub. 2. n. 8. says, that Ius in re, in the mode of dominion, can scarcely be explicated by any common concept, since it is an analogon of proportionality to its inferiors, such as the dominion of Jurisdiction, and of Property, of which I shall treat in the Disputationes de Furto, et Rapina.

¶ These things pre-stated, it is now established that the object of the Justice of which we treat is Ius, that is, as he says, the Iustum through a certain equality.

¶ It is proved first from the definition of Justice; which is defined through such Ius, as through its proper object. So Aristotle 5. Eth. cap. 1. We see, that this kind of habit is wont to be called Justice; from which men are made suited to doing just things. And cap 5. Justice is that by which the just man is called the doer of the just from election. Where he takes iustum for the equal.

¶ The Jurists also with the words of Ulpian l. Iustitia, ff. de Iustitia, et Iure, define Justice thus: Justice is a constant, and perpetual will of rendering to each his ius. Which definition St. Thom. also sets forth quaest. 58. art 1. and St. Bonaventure 3. p. Centil. sect. 44. where he asserts it to be of the Masters.

¶ So also St. Ambrose lib. 1. de offic. cap. 24. says: Justice renders to each his own ius, does not claim another's, neglects his own utility, and keeps the common equity. And St. Augustine lib. 19. de civit. cap. 21. There is not (he says) ius, where there is no justice: Justice moreover is that virtue which distributes to each his own,² So also St. Bonaventure reports loco citato. ² Editor's note: the print reads 'quae sua nique distribuit'; 'nique' is corrupt (apparently for 'unicuique'); rendered 'sua unicuique distribuit' (distributes to each his own).

¶ It is proved secondly by St. Bonaventure in Diaeta, tit. 5. cap. 8. That is the object of Justice, which constitutes the virtue, standing in the mean, not declining to the vicious extremes through excess, and defect: Such is ius, or iustum: Therefore. The Major is Aristotle's 2. Eth. cap. 6. The Minor is proved; For then is one sinning against justice, when more or less is given than is owed. But the mean is the equitable, as Aristotle shows 5. Eth. cap. 3. et 4. cited by St. Bonaventure loc. cit. He says. Thus cap. 4. he says: Whence when men contend, they flee to the judge, etc. and they seek a judge in the mean, and some call him mediator, as if, should they have attained the mean, they should also attain the ius itself. Ius therefore is a certain mean, if indeed the judge also is in the mean; But the judge reduces to equality; and as, if a line be divided into two unequal parts, that by which the greater part exceeds the half, he takes from it, and joins to the lesser.

¶ The Saintly Doctor expounds it with an elegant Astronomical example: For as he says the Polar star, near the pole, is borne with a small gyre in the diurnal motion around the Pole; yet so, that it does not recede from the middle, that is, from the pole of the world; so also created Justice gyrates closely around the immovable Justice of God: And as, not declining, it keeps the straightness of the diurnal motion; so that as the line of the Equator in the middle of its circulation describes the Highest circle, on that account it does not allow the gyrating stars to decline to the right, or to the left, that is, toward the South, nor toward the North; although it is borne through the immense space of 1017. Millions of miles; so also Justice, keeping the equatorial line of equity, does not allow the various things snatched by the first mobile to decline from East to West, either to the right of excess, or to the left of defect, giving more to one; and taking from the other.

From these the Saintly Doctor draws, in 3. dist. 33. dub. 1. and 5. p. Brevil. cap. 4. with St. Thomas as cited by Cajetan art. 1. and Valencia p. 1. at the end. And Soto lib. 3. de Iustitia, quaest. 1. art. 1. the difference between justice and the other moral virtues; for Justice according to its proper reason makes right in order to another; but the others only in order to oneself. On this account St. Ambrose lib. 1. offic. cap. 28. says, that Justice is born rather for others than for itself. So also Cicero lib. 2. de Republica, and Seneca epist. 77. as the Saintly Doctor teaches in Pharetra, lib. 1. cap. 42.

It is GATHERED also, that the mean of Justice is the mean of the thing, even without comparison to the very agent; but of the other virtues, which turn about their own passions, and not about another, in no way does it consist in a mean without comparison to the very agent. But that equality is that very ius, which is called equitable between too much and too little, as Aristotle says 5. Eth. cap. 4.

This shines still more in that example of the Seraphic Doctor: For as without any thinking there is the pole, upon which the heaven moves, and the polar star; which, its small diurnal circle having been described around the pole, they keep the motion of both Hemispheres by the line of the Equator, the substance of the heaven being kept on both sides for each Hemisphere Mathematically; so also Justice, before every thought, and before all its operation, has that object alone, and only to be kept, which is not found in the other moral virtues.

HENCE also it is, that in the Disputation on Justice there is first treated of its object; then of the Virtue, because the object is presupposed before the virtue; not so in the other moral virtues. See Valencia at the end of the punctus.

IT MUST however be observed, that Ius, which is the object of Justice, includes two things; First, that it be owed: Second, that it be equal.

INASMUCH as it is owed, it can be either owed Legally by the force of some Law, or singular, arising from some pact, or convention of certain persons, such as is between buyer and seller.

SECONDLY Ius, inasmuch as it is owed, is divided into natural Ius and human Ius. The owed thing of the first kind arises from the law of nature, namely, that if you give a measure of wheat as a loan; that he render that measure to you. This however is distinguished threefold by St. Bonaventure in 4. dist. 33. quaest. 1. The first is called that which is contained in the Law, and the Gospel, and this is called natural Ius commonly. The second is proper, and is defined at the beginning of the Decretals: Natural ius is that which is common to all nations; and this ius is that which reason dictates. The third, most proper, which nature taught all animals.

The owed thing from human law is, what has been established by some human law, as that between certain things vendible, and that price which is fixed by human law, it be the only price.

From the other head, however, inasmuch as it is something just, and equal; It is divided first by Aristotle lib. 5. Eth. cap. 3. et 4. into Ius, or the equal Geometric; and Arithmetic. The Geometric equal, which is according to proportion, is observed in the distribution of common goods among those who are members of the community, so that by as much as one surpasses another in merits, by the same proportion he may receive more of the goods of the community. But Aristotle says that Ius is exercised through Arithmetic equality, both in exchanges, which are done voluntarily between men, as in buying, selling, exchange, etc. and in compensating, or making amends for the dealings of men involuntary, and those without clandestine acts, as theft, adultery, poisoning, pandering, the seduction of servants, deceitful homicide, false witness, etc. or manifestly violent, as flogging, captivity, slaughter, rapine, mutilation, reviling, contumely, etc. which examples the Philosopher brings in that cap. 2. and through this are distinguished two species of Justice properly so called, namely Distributive, and Commutative, which I exposed at length p. 1. Tract. 1. disput. 19. quaest. 1. et 2.

SECONDLY Ius, inasmuch as it is equal, is divided into Ius, or the iustum simply, and Ius secundum quid. Ius simply is, what is altogether equal, or by which those are made equal between whom it is; and because equality is between distinct ones, therefore this equal is between those, of whom one is not a part of the other, as between two citizens, and it is called Political Ius. Ius secundum quid equal, is between those, of whom one is a part of the other, as between Father, and son, who is a part of the Father, since from his seed, as Aristotle teaches 8. Eth. cap. 12. So between Lord, and servant, who is something of the Lord, namely his instrument, and a part in goods, as Aristotle teaches 1. Polit. cap. 3. Such is also that between Husband, and Wife, as Aristotle says, because whichever spouse is of the other, as is gathered from the Philosopher 6. Eth. cap. 5. and more from Matth. 19. Ephes. 5. For they are one flesh, and on that account that ius is called by St. Thomas here, art. 4. Oeconomicum, and some dominion intervenes in bodies, and some other things, as St. Bonaventure teaches in 4. dist. 41. quaest. ult. Such improper ius seems to be also between citizen, and community, of which he is a part.

THEY DISPUTE: Whether this improper ius is also on the part of the father toward the son, since the father is not a part of the son. They respond affirmatively, Cajetan art. 4. Valencia punct. 2. for whatever pertains to the whole, pertains also to the part. Hence it comes about, that what the son renders to the father, he renders also to himself.

THEY ALSO DOUBT: Whether the son, even when emancipated, ought to be included under this improper ius. It is answered, that he is included by the reason made above, because to be a part of the Father came to him from generation, which always keeps sons, that they may be as it were other Fathers, as Aristotle says 8. Eth. cap. 11.