Question One: On Judgment, Which Formally and Primarily Is an Act of Distributive Justice

S. Th. II-II, q. 60; and 63, a. 1.

612. Judgment is the act of a judge, or of a superior judging, insofar as he is judge; this act pertains formally and more than the others to distributive justice. For distribution includes and supposes a judgment of authority concerning the goods of the community, with the common good nevertheless preserved, to be divided among members proportionately to their dignity, or concerning guardianship or protection to be conceded to them proportionately to the quantity of their goods and rights.

A judge, etymologically, is as it were one speaking right (ius dicens), whence he is a public person instituted for this: that he may speak right to those subject to him according to the prescription of law. Hence judgment:

1. In its primary signification and most properly imports the right definition or determination of right or of the just, which is the object of justice; and therefore judgment is an act of justice. But judgment is understood according to excellence: exercised publicly with solemnity, which is done authentically by the superior of society, or in his name by him who exercises judicial power in society: "judgment is in princes and judges";

2. Secondarily, it signifies such a judgment rendered internally or privately, even by private persons, in a matter of justice, namely, concerning the life, things, rights, or morals of others;

3. The name was broadened to signify a sentence or determination of the right in any matter whatever, whether speculative or practical: for in every assent or true determination of the mind there is equality or conformity of the intellect either to the thing or to right appetite. And thus, less properly, judgment belongs to any virtue: for it pertains to any virtue to judge in its own matter, but in this way judgment is rather the determination of the right than of the just.

613. Judgment is an act of justice. Billuart proves this thus:¹

¹ Diss. VII, a. 1.

1. "It belongs to justice to define and determine that which is just or equal to another: for this is its object. But judgment in the proper sense is nothing other than the definition and determination of the just. Therefore.

2. To define rightly in the matter of some virtue proceeds from the habit of such a virtue (q. 60, a. 1), insofar as the virtue inclines the affection to its object and the intellect judges conformably to the affection, because the affection makes the thing seem suitable to the intellect; whence it is commonly said, as someone is affected, so he judges concerning things: thus the chaste man rightly judges those things which pertain to chastity. Therefore to define rightly in the matter of justice, which is to judge, proceeds from the habit of justice."

Nor should it be said that judgment belongs to reason, not to the will, and therefore pertains not to a moral virtue but to prudence. For two things are required for right judgment: "One is the very virtue pronouncing the judgment, and thus judgment is an act of reason: for to speak or define something belongs to reason. The other is the disposition of the one judging, from which he has suitability for judging rightly; and thus in those things which pertain to just judgment it proceeds from justice, as in those things which pertain to fortitude, from fortitude. Thus, therefore, judgment is an act of justice as inclining to judging rightly, but of prudence as pronouncing the judgment; whence also synesis, pertaining to prudence, is called well-judging" (q. 60, a. 1, ad 1).

Therefore judgment, insofar as it regards the just according to all circumstances, is an act of prudence; but insofar as it formally regards right as an equal due to another, which is the proper object of justice, it is an act of justice, and indeed elicited by it, because it is immediately regulated by it, no other virtue mediating.

614. Judgment is lawful (Deut. XVI, 18-20; I, 16-17; Jn. VII, 24; Rom. XIII, 4; Acts V; I Cor. V, 3 sq.), provided it is clothed with due circumstances,² which are three: 1. that it proceed from the inclination of justice; 2. from the authority of the one presiding over a subject; 3. and that it be pronounced according to the reason of right prudence. When these are lacking, judgment is called either unjust or perverse, or usurped, or rash; and therefore in the Scriptures it is sometimes prohibited (Mt. VII, 1-2; Rom. II, 1; XIV, 3 sq.; Jas. IV, 11-13).

² Thus against the Waldenses and Anabaptists, saying that it is not lawful for Christians to exercise judgment.

Judgment is validly exercised even if the judge were to condemn concerning a sin of which he himself is guilty, because sin does not take away the authority of jurisdiction (Council of Constance, sess. 8, c. Wicleff); although he can sin by graver scandal if, being a public sinner, he judges thus.

615. Observations. 1. In judgments concerning persons, doubtful things are to be interpreted in the better part, not only negatively, insofar as the worse is not to be judged but one must at least abstain from judgment, and this must always be observed, as we already said where treating rash judgment; but also sometimes positively, namely, when a positive act of judgment is prescribed to be elicited concerning the goodness or malice of one's neighbor. For each one has the right to be esteemed good, so long as his malice does not sufficiently appear.

2. Judgment ordinarily must be exercised according to written laws. For "judgment is nothing other than a certain definition or determination of that which is just. But something becomes just in two ways: in one way from the very nature of the thing, which is called natural right; in another way from a certain agreement among men, which is called positive right. But laws are written for the determination of each right, yet in different ways; for the writing of the law contains natural right, indeed, but does not institute it: for it does not have force from the law but from nature; but the writing of the law both contains and institutes positive right, giving it the strength of authority. And therefore it is necessary that judgment be made according to the writing of the law; otherwise judgment would be deficient either from the natural just or from the positive just," q. 60, a. 5.

It is said: ordinarily; it would not have to be done thus if human law manifestly contradicted the natural law, or if in the case it tended to the detriment of the common good.

616. The sin which is opposed to distributive justice and to just judgment is acceptance of persons. This name is taken from the Scriptures (Deut. I, 17; XVI, 19; Lev. XIX, 15; Eph. VI, 9). To accept a person is to look at the face (Mk. XII, 14 and Mt. XXII, 16; Ps. LXXXI, 2); whence it is so called because, with the proper motives omitted which ought to be attended to for just distribution, namely, merits, necessities, dignity, capacity, it regards other impertinent personal circumstances. Therefore persons are said to be accepted, not merits. Hence acceptance of persons (aanzien van personen) is defined: an injustice by which, in common things to be distributed from justice, attention is not given to the proportion of merits or suitability of those to whom they are given, but to some cause impertinent to this matter. It is said:

1. In things, whether good things, such as benefices, public offices, honors, judgments, etc., or bad or burdensome things, such as taxes and tolls, contributions of works, penalties, etc.

2. In common things to be distributed from justice, because in the distribution of one's own things which one is not held to give, or not held except perhaps from liberality or from charity, there is no acceptance of persons, even if one does not attend to the merits or suitability of those to whom he distributes; for example, to give alms to someone because he is a friend: for anyone without injustice can give from his own as much as he wishes and to whom he wishes. Hence there is no acceptance of persons if God distributes graces unequally (Mt. XX, 14-15; Rom. IX, 14 sq.).

3. Attention is not given to the proportion of merits or suitability: for if someone considers that property of the person on account of which that which is conferred upon him is due and proportioned to him, there is not acceptance of person but of cause; for example, to promote someone on account of knowledge. But if someone considers in him to whom he confers something, not that on account of which what is given is proportioned or due, but only this, that he is this man, there is acceptance of person, because it is not given on account of the cause, but is simply attributed to the person.

Therefore to the person is referred whatever condition does not make for the cause on account of which someone is worthy of this gift; for example, if someone promotes another because he is rich or related by blood.

617. Acceptance of persons is opposed directly and per se to distributive justice, because distributive justice consists in this, that diverse things are given to diverse persons according to proportion to the dignities of the persons; but in acceptance of persons action is taken apart from proportion. Nevertheless it can also be opposed not only to legal justice, insofar as it harms the common good, but sometimes by accident to commutative justice, insofar as it injures the strict right either of society, for example, by naming incapable ministers, or of private persons, for example, in the distribution of goods which are primarily destined to certain determinate persons, such as the poor, who then have a right to the thing.

Moreover, from its genus it is a mortal sin, both because every injustice from its genus is grave, and because distributive justice is more excellent than commutative justice, as being nearer to the common good and to legal justice, and because no less damage follows from unjust distribution than from commutation. Nevertheless it can be venial from lightness of matter, as if in a small matter, for example, in a place for sitting, one less worthy is preferred to one more worthy, or if there is a small discrepancy between the less and the more worthy, or among the goods distributed.