Article II. On the Nature of Right

519. • Definition. By the name of right, taken precisely and as concerns the present matter, there is understood either that which is owed to another, and is customarily called the just or the equal ¹, and thus it is the object which justice intends, and which it gives to each one; or it is taken for the title which justice regards on the part of another, or on account of which it wills to give to each one his own, and thus it is the power of obtaining or possessing something. Since these two significations are correlative, for this reason among some they have obtained the name of passive right and active right: by the former form signifying what is owed, but by the latter the reason or title of debt or claim ².

¹ Concerning this matter Soto (De Iust. et Iur., lib. 3, q. 1, art. 1): "I would believe that by apocope, that is, by cutting off a syllable at the end of the word, iustum was called ius... Whence in Greek dikaion indifferently signifies the same thing as the just and right." Whatever anyone may finally think of this conjecture of Soto, nevertheless this is plainly established: right (dikaion), according to Aristotle's opinion, is so called on account of the equality of thing with thing; he says that an equality of this sort in some way arises between two parts of some thing divided in two ways; indeed, from this division into two equal parts he draws the origin or etymon of the word dikaion, that is, of right or of the just. For thus he himself says (Ethic., lib. 5, chap. 7): "The equal is the mean between the greater and the less according to arithmetic proportion; for this reason it is also called the just or right, because it is in two, just as if someone were to say divided into two equal parts, and the judge as if a divider into two parts," namely one who divides into two equal parts.

² Card. De Lugo must certainly be seen (De Iust., disp. 1, n. 5), where he gives fully the reason why that right which justice regards, and which we signify when we say mine and yours, must be placed in a certain moral prelation, by which this man is morally preferred to others in the use of such a thing on account of the peculiar connection which the thing has with him, and on account of which the whole thing ought to be referred and ordered to his utility. And this seems to concern what the Author added in the definition of right by those words, "for one's own advantage."

520. • But in a broader sense the word right is taken: 1. for skill in law, or jurisprudence; 2. for law, or the rule of the just ³, and thus one says natural, positive, divine, human, civil, canonical right, the right of nations, etc.; 3. for the sentence of a judge, and from this the word judge, as if one saying right; 4. for the thing which is owed to another from any title whatever, and then it is passive right, or the object of right; 5. for the very title of the thing owed: thus, for example, jurisdiction is called the right of a Superior to obedience ⁴.

³ There are some to whom it is less pleasing that law is signified by the name right in a certain broader sense; for they think rather that ius is said from commanding, as iussum diminished by apocope, and therefore that in the most proper sense ius is taken for law. This question is of very slight importance. But the Author has followed the common opinion of the Doctors, which St. Thomas (2. 2, q. 57, art. 1, ad 2) explains thus: "Just as of those things which are done exteriorly through art, a certain reason preexists in the mind of the artisan, which is called the rule of the art; so also of that just work which reason determines, a certain reason preexists in the mind, as a certain rule of prudence: and this, if it is reduced to writing, is called law. For law, according to Isidore, is a written constitution; and therefore law is not right itself, properly speaking, but some reason of right."

⁴ Gregory Valentia (Comment. Theol., tom. III, disp. V, q. I, punct. 1) enumerates nine senses in which the word right is found used by jurists; yet all these have kinship with the primary sense, that it is the object of justice. And therefore among them you will by no means find the right of a superior to the obedience of subjects; for obedience does not pertain at all to justice, but is counted among the parts of justice which they call potential or potestative. See St. Thomas, 2. 2, q. 80, a. 1.

521. • Division. Right is chiefly divided into right in a thing and right to a thing.

1. Right in a thing is that which someone has in a thing already his and possessed ⁵, that is, which is so bound to him that he can dispose of it at will. Such is the right of the buyer in a thing bought under French Law, and in a thing bought and delivered under Roman Law. This right confers a real action, which directly touches the thing itself: wherefore whoever enjoys this right can reclaim his own thing wherever it has gone.

⁵ Possession is not necessary for right in a thing, which endures even if a thief has carried off the thing and actually possesses it. Hence also the Author adds that the owner can reclaim his own thing. Moreover, when the Author here names "his own thing," understand that "his own" both as to full dominion and also as to semi-full, whether this is direct, or of property, or merely useful.

2. Right to a thing is that which someone has so that the thing may become his. For it gives a personal action, that is, it directly touches the person, which gives another the faculty ⁶ of demanding from him the thing contracted, and of pursuing him in judgment if he does not wish to do or give what he owes: whence it is called a personal right, because it immediately touches the person.

⁶ Those words are a little obscure, and in some way narrow the sense too much. For, for example, a personal action is given against one causing damage who destroyed the thing; but you would less properly say that the one causing damage gives the faculty of demanding from himself, etc.

Others more clearly: Right in a thing is present when the thing itself is had as obligated to oneself, and therefore it gives vindication of the thing, or an action against the thing itself. But right to a thing is had when to someone there has been acquired a right or power of obligating the thing to himself, and therefore it gives only a personal action against those refusing or impeding the acquisition of the thing itself.

The contract ⁷ of promise confers only right to a thing. Likewise the title of purchase under Roman Law before delivery of the thing confers only right to a thing. Under the new French Law the consent alone of the parties completes the contract of sale, the delivery of the thing being excluded, and consequently gives right in the thing. Civil Code, art. 1583. Except the particular case in which a movable thing, sold and not delivered, had been handed over to a second buyer in good faith; for then only a right to the thing would be had. - Civil Code, art. 1144.

⁷ Concerning these things prematurely noted here, it will be treated better in its own place.