Question One: On Right in General

St. Th. II-II, q. 57, a. 1; I-II, q. 60, a. 2.

149. Various acceptations of right. - A. In the more received sense, right designates:

1st. Properly, and indeed in its primary signification, that which is just (the just thing itself), and thus it is the object of justice: that which is owed to another and to be rendered unto equality. In this sense one says: to give someone his right, a chacun son droit, wat recht is.¹ It is objective right, which is also called passive, since it must be given to each one.

¹ "In modern languages right is designated by a metaphorical word from geometry (straight line, droit, recht), because just as a straight line of itself and independently of our choice is the shorter line between two points, so right constitutes rectitude in the relations of men among themselves." Lehu, Phil. Mor., I, n. 353.

2nd. Secondarily, the foundation of the just, namely, the legitimate power or faculty of demanding something as owed; in which sense someone is said to use his right or to have the right of property or of election: it is the power of right² (pouvoir du droit, rechtsbevoegdheid, rechtsvermogen). This right is subjective, or also active, which each one can exercise.

² Thus more recent authors; the ancients are not accustomed to call this right, but faculty, power, or even dominion. Indeed it was said that in this sense the word ius never occurs in St. Thomas. But this is said too boldly, for it seems to be used somewhat in this sense, though very rarely, for example, I-II, q. 58, a. 2; II-II, q. 66, a. 5, ad 2; Suppl., q. 64, a. 1, ad 3; de Virt., q. 1, a. 4; in IV, d. 25, q. 3, a. 2, qc. 3, ad 2.

3rd. Finally, by a signification not proper but metaphorical, yet proximately derived, the cause of each, namely, law (and by extension: the complex of laws), which is the rule both of the faculty of demanding a debt of this kind and of the just thing itself, because it determines the rights of men: thus natural, divine, ecclesiastical, and civil right are spoken of. It is normative right.³ Law is not right essentially, but causatively, because it is the reason of right, namely, the reason by which there is in another the faculty of demanding something, and consequently this is owed to him and must be rendered: for these are correlatives which correspond to one another.

³ Modern authors more often call law objective right.

The aforesaid order is according to the signification of the name; but the real order is inverse.⁴ For the first, namely, right in the first signification, according to the thing depends upon the second, and the second upon the third: nothing is owed to another without the faculty of demanding it in the other, and that the other has this faculty is given to him by natural or positive law. Thus the faculty of demanding something (active right) mediates between the reason of right (law) and the just thing (objective or passive right), and although it is not the object of justice, nevertheless it is something on which the object of justice depends, and to which it has an intrinsic order as to something which it supposes.

⁴ Let it be noted that the matter is thus proposed independently of etymology, but in order to the doctrine on justice, conformably to St. Thomas. There is doubt about the etymology. Formerly several said that the word ius was derived from iustum, signified the same as just, and was so called by apocope, i.e., amputation. Today this is abandoned by many. Others said it is the same as iussum, which indicates law. Others hold the word as primitive: ios or ious, i.e., good, holy, that which pertains to divinity; or iu, iug, which signifies a bond, a tie which joins men or to which they are subjected. But whatever may be the case concerning the first signification or etymology of the word, in the doctrine on justice the primary signification is the just or objective right, because the others do not pertain to justice except insofar as they have relation to its object, which is the just or objective right. Terminology is not wholly fixed and determined. The ancients especially understand right in the objective sense; subjective right they are not accustomed to call so. Modern authors, on the contrary, rarely speak of objective or passive right, and especially take right in the sense of faculty, or even of law. One must attend to this in reading authors.

B. By a signification more remotely derived and wholly improper, right designates:

1. the science by which what is just is known (the science of right, a jurist, to study law), or the code in which laws are found; 2) further, the place in which right is rendered (to appear in court, to be called into court, to have recourse to court); 3) finally, the sentence of a judge, to whom it belongs to make justice, even if what he decrees is unjust (to render right).

150. Definition of right. - Right cannot strictly be defined, but is a simple and primary notion;⁵ nevertheless it can be described somewhat, so that it may be more fully understood.

⁵ Pottier, De Iure et Iustitia, diss. I, sect. I, n. 3.

A. Right considered objectively or passively is that which is rigorously owed to another unto equality, so that the other can demand it as due to himself and exclusively his own, even legally or judicially; in other words, it is a strict debt to be rendered unto equality. Whence formally it is a true relation, namely, of equality toward another. It is the adequation, the adjustment, of one to another; consequently it is a relation constituting an objective order between them, and thus a due ordering of one to another: a relation by which they are adjusted or made adequate to one another, or a relation of adequation between two or more whom it renders equal and by which they are equal.

This relation is not immediate between persons, but is made by means of the object which specifies the right: something must be given to one which is owed to him by another. The object of right is not always a thing; it can be an action to be furnished, such as honor and service, or the omission of that which would impede the action of another. But the subject of right is he to whom it is owed, to whom right is his to something.⁶

⁶ It can be asked whether the object of justice is the just operation itself, the rendering of the debt, or rather the object of the operation. Fr. de Victoria responds in this place: The rendering of the debt can be called the object of justice, or the equality which arises from the fact that the debt is rendered. The just operation is for the one owing one hundred to render those to the creditor. If he renders them, a just operation is done and equality is made. The object of justice is each in some way: that giving, and the equality resulting thence. Yet more properly the resulting effect, namely, the equality following the just operation, is called the object of justice; because the operation tends to that, and the object of justice and of the just operation must be the same, just as the object of the habit and of the operation is the same.

B. But right considered actively or subjectively imports a relation of a rational being to something as to his own; yet formally it is power, and is usually defined as a legitimate and inviolable moral faculty of having, doing, or demanding something, as exclusively one's own, for one's proper advantage. It is said:

1st, moral faculty, i.e., not a mere fact, but a power, not indeed merely physical, which can be opposed to right,⁷ but moral and legitimate, which is obtained by force of law and is conformed to right reason. Whence the subject of right is a rational being;

⁷ Cf. Syll. prop. 59 and 61.

2nd, inviolable, i.e., which cannot licitly be prohibited by others, for right in one brings with it in others the obligation of not impeding the exercise of this right. Whence of itself it also includes coercive power by force of warding off those who try to injure the right; yet this faculty must be exercised not arbitrarily but according to law;

3rd, of having, doing, or demanding something, by which the object of right is indicated, which is threefold: possession of external things, exercise of one's own faculties (under which name also comes non-exercise: not paying, not serving as a soldier), the furnishing to be made by another (or omitted), or the action of another;

4th, as exclusively one's own for one's proper advantage: namely, it is founded on the connection of the thing with the possessor of the right, considered independently of other men, by which it comes about that the thing must serve his utility exclusively. - And thus right properly and simply so called is distinguished from right accepted in a broader sense and according to something, or the power of jurisdiction which someone has for ruling others, not for his own advantage but for the utility of subjects.

151. What is essential to right.⁸ - Therefore in right, considered both subjectively and objectively, there is essentially imported a moral preference by which someone is preferred, all others being excluded, in the use of some thing on account of the peculiar connection which the thing has with him; whence it is owed to him. That connection is a moral bond: namely, it is a connection conformed to right reason, by which it comes about that the thing about which there is question must now be judged as exclusively destined to the utility and advantage of him who has obtained this connection. Therefore the essential or constitutive foundation of right is that connection, namely, the ordering of something to something as to an end; if this exists, right exists; but if it does not exist or if it is removed, right does not exist.

⁸ On the notion and foundation of right, cf. Meyer, Zigliara, Lehu, Beysens, De Pascal, De Bie in the cited work; likewise Weiss, Apologie des Christenthums; Nolens, De Leer van den H. Thomas over het Recht; De Baets, Les Bases de la Morale et du Droit; Kuhlmann, Der Gesetzesbegriff des H. Thomas von Aquin; De la Barre, La morale d'apres S. Thomas d'Aquin et les anciens scolastiques; Lachance, Le Concept de droit selon Aristote et S. Thomas.

This connection can arise by various titles from the nature of the thing or from positive law; for example, he who from his own material, by his own instruments, has made some manufactured thing, for this reason has a connection with the work which no one has with it; and, this being posited, right reason dictates that he be preferred to all others in the faculty of disposing of that thing for his own utility. And he who has received the thing from him is rightly judged to succeed in the connection of dominion, and therefore to be preferred to all.

152. The proximate foundation of right. - The aforesaid titles provide the foundation of this or that right in the concrete, but there must also be a foundation of right itself, as such, in the abstract, or of every right: this is the dignity and inviolability of the person himself. A person essentially is an intellectual being, incommunicable, existing for himself: on the one hand he is master of his acts on account of freedom; on the other hand, because, existing incommunicably for himself, he is of his own right, and of himself in being and acting; whence he does not exist merely or chiefly on account of the good of others, but on account of his own good and proper end. Therefore he cannot be considered by others as a means subordinated to them, but they must revere him as a being existing alongside them and of the same dignity, who cannot be deprived of his own order to his proper good. Therefore every person is inviolable insofar as he tends to his end (S. Th., c. Gent. III, 112).

This being posited, we argue thus: A person enjoys the inviolable faculty of ordering himself to his end. But he cannot efficaciously attain the end without several means, even external ones: exterior things - the use of faculties - a prestation made by others, such as honor, help, the rule of superiors, etc. Therefore he also has the inviolable power of effecting or obtaining that those means are truly ordered to his proper end. But this is the right of disposing exclusively of these things.

153. The ultimate foundation of right. - The inviolability of the created person is the proximate and secondary foundation; but the primary foundation or ultimate source of right is God Himself. For:

1st. He who imposes an end upon us and wills that we attain it, must also give us the means necessary for this and order that by an inviolable power we can tend to the end through them (against Kant).

2nd. Moreover, right in one and duty in another are correlatives;⁹ but every obligation and duty is ultimately derived from the eternal law of God, as was proved in the treatise on Laws, I, n. 241; therefore God is the ultimate source of every right.

⁹ Against this assertion some object at times that there is an obligation, for example, of almsgiving, in one, without right in another; or, if it is not without right, that by this very fact almsgiving is owed in justice. - Resp. 1st. There is an obligation in one without right in another, I concede; there is a duty or obligation of justice in one without right in another, I deny. Or 2nd. There is an obligation without right in him to whom the obligation procures an advantage, I concede; without right in another who obliges us, for example, in God, I deny.

154. Errors concerning the nature and foundation of right are various, just as concerning the nature and foundation of morality and moral obligation.

A. Materialism, such as natural monism, acknowledges nothing except the law of brute matter, or the dominion of the stronger force; whence right is natural force or physical power. Cf. Syll., prop. 59 and 61.

B. Juridical positivism, which is akin to moral positivism. It arose among the sophists. Callicles, Thrasymachus, and Aristippus admitted some right of nature (individual right), namely, the physical force of the stronger, whose measure is the necessity of nature and the utility of man; but since society is necessary at least for the weak, so that they may be able to exercise that right and live securely, it must be transferred and communicated to the community, so that they may have right collectively and so that it may be determined from common power and will. Thus right becomes collective and positive, and the distinction of just and unjust is from external human authority, so that the whole of right is positive and of human origin.

Spinoza (1632-1677) taught almost the same thing; likewise Hobbes (1588-1679), deriving right from the power of command and civil authority; thereafter J. J. Rousseau (1712-1778), explaining the origin from the social contract, or from an express or tacit pact with society through the abdication of individual rights. Bentham, Wundt, Lasson, Schopenhauer, v. Hartmann, v. Kirschmann, v. Ihering, and afterward, in some sense, the promoters of the historical school, approached more or less to this.

C. Transcendental rationalism. Thomasius (1653-1728) was the first of all adequately to distinguish right from morality, so that right is torn away from morality: morality regards internal peace, right external peace.¹⁰ What he rather insinuated for practical reasons, Kant (1724-1804) attempted to establish from philosophical principles. Just as the internal liberty of a rational being, which is an end in itself, is the foundation of moral obligation, so also external liberty is the foundation of right. Morality regards the internal obligation of conscience or of practical reason essentially autonomous (namely, from every external law); right regards external law or external coercion. Hence the juridical order is independent of the moral order. Yet external liberty is the necessary complement of internal liberty; and thus right is the condition, or complex of conditions, of individual liberty. For the liberty of one must be harmonized with the liberty of another; whence the liberty of each must be restrained in favor of the liberty of all. Some positive common recognition of this is required; and therefore it is postulated that civil society be constituted by a social pact, by which rights are determined.

¹⁰ Thus against Wicleff and Luther, who, namely, acknowledge internal right, but no positive right.

Fichte (1762-1814), in his subjective idealism, followed Kantian doctrine rather closely: according to him the liberty of each one is to be restricted insofar as the possibility of the same liberty of others demands it. This restriction is to be made by common consent; and therefore every juridical relation exists really and determinately insofar as it is founded on common recognition. Hence the necessity of society, and in it of a coercive power, by which alone the liberty of all can be obtained and preserved, and which determines the rights of individuals. Thus subjective individualism of right was born.

To this there succeeded, by reaction, an absolute objectivism of right in objective transcendental idealism and ideal pantheism, which Schelling (1785-1854), and especially Hegel (1770-1831), defended, and to whom Schleiermacher (1768-1834) in some measure approached.

In place of the pact-like union of wills there was substituted the absolute universal will, and an absolute moral organism with absolute morality, which does not descend from the eternal law of God, but is realized and expressed by the political State, which State is the supreme deity of human affairs. Hence there arises the omnipotence of the State, which leads to full socialism.

Thus the State is the source of all right, whose immediate foundation is the universal will.

In more recent times many remain imbued with Kantian principles and profess pure rationalism or formalism, such as Stammler, Loening, Kelsen, Merke.

D. The historical school. From a certain reaction against Kant and individualism, and at the same time against absolute transcendental objectivism, there arose the school of historical right, according to which in fact and in the concrete there exists no valid right except positive right, whose source is the history of laws and customs: thus for the absolute will there is now substituted the union of wills; nor is the State the origin of right, but rather the State has arisen from the evolution of right.

Thus de Maistre, de Bonald and the traditionalists, Burke, likewise Lud. de Haller and Adam Miller; afterward, more scientifically, the strictly historical school represented by v. Savigny, Hugo, Puchta, v. Stahl, Schwind; the strictly empirical school with v. Ihering¹¹ and Levy-Bruhl, to which the sociological school with Durkheim in some measure approaches.

¹¹ Yet he holds the State to be the source of right, which he says is an advantage that is juridically protected.

Right properly so called, which is to be distinguished from morality, is nothing except positive right, nor has it any other source except a historical one, namely, historical custom and the statutes of laws. The science of right is the evolution of written law and legal custom; the subject of right is the people, and all right is human.

Several things can be opposed to these systems. Generally:

a) It is false that right is adequately distinguished from morality: for it is an objective part of the moral order, or part of the natural law, since man by his nature is social.

And indeed: objective or passive right is the object of justice, which is a moral virtue; subjective or active right is a moral faculty; normative right or law is of the moral order, for it depends upon the natural moral law.

b) It is false that there is nothing except positive right. For 1) we have demonstrated that the natural law exists (I, n. 244) and that there is intrinsic morality (I, n. 122); but the precepts of justice pertain to it. - 2) Positive law is necessarily founded upon natural law (I, n. 270); thus positive right is necessarily founded upon natural right.

c) It is false that materialism, positivism, idealism, or pantheism is founded, or renders an account of right; since force, utility, or liberty do not suffice to explain or found right.

In particular. 1. Against Materialism: there is a distinction between the spiritual and moral order, and the material and physical order; therefore right, which is of the moral order, is not reduced to physical force.

2. Against moral Positivism: a) natural right is demonstrated from the same arguments as natural morality;

b) all rights do not arise from society or positive law: thus the right to life, or the right of fulfilling a natural office, for example, the father has the office and the right of educating his son;

c) natural right is the necessary foundation of positive right: for civil law obliges only from natural right;

d) absurd consequences follow from positivism: for this being granted, no law or custom would now be unjust, and laws could permit that men be treated as beasts.

3. Against Kant: a) the foundations of the system are false, namely, that man is a person autonomous through himself, - that liberty is an end in itself, - that man is his own legislator, and, as a rational being, is the principle of morality, while as a social being, the principle of right; on the contrary, a created being is essentially subject and dependent;

b) it is false that human law does not oblige in conscience but has only coercive force; and that the law of God is excluded from external legislation just as from the internal legislation of conscience; - on the contrary, there is no law which is not derived from the eternal law;

c) it is false that external legislation can be contrary to the ethical order, since no obligation to what is dishonorable can be given.

4. Against the historical school, besides the points already noted against moral positivism: a) right does not arise from a free fact alone, but principally and priorly from an imposed office, or from a natural event, as from the generation of a son;

b) natural inequality is intrinsic to men: for although according to nature itself they are equal, under many other respects they are naturally unequal; therefore the diverse rights of men do not arise only from liberty or from a free fact.

155. Corollaries. - A. For right three conditions are required:

1st. a thing which can serve the utility of the one having it;

2nd. a moral bond by which it is connected with the one having it, so that he can licitly use it;

3rd. this bond, referred to others, constitutes in them the duty by which they are to avoid impeding in the possessor the faculty of using that thing.

B. Likewise, in order that something can be the object of right, three conditions also are required: 1) that the thing be subject to human power, for example, there is no right over the substance of the heavenly bodies;

2. that it can be for some advantage or utility: thus there is no right over harmful and useless things precisely as they are useless, but only over goods;

3. that it can be appropriated, i.e., be for one's own and exclusive advantage, and not of itself remain for the common utility of all: thus there is no right over the air or the wind, which, while serving one man, are not of less advantage to all the rest.

C. There are five elements of right: 1) the subject, or person to whom the faculty belongs and the thing is owed; 2) the species, from which various rights differ, for example, of an owner or of a lessee; 3) the object or matter; 4) the term, or person who is obligated from the right of another; 5) the title, or source or cause of the right.¹²

¹² Lehu, o. c., n. 355.

D. To one asking which is prior, right or duty, the answer is that the supreme right of God, who is the source of all rights and duties, precedes all things; but in man, a) if rights and duties are compared in relation to God, duty toward God, the last end, precedes, and from it there flows the right of moving oneself to the end; b) if the rights and duties of men among themselves are compared, they are correlative, yet logically right precedes, so that from right in one there is derived duty in another.

E. Since all rights and also duties ultimately flow from one source, God, no collision or contradiction properly is given between various rights, or between rights and duties; but there is a subordination of rights, insofar as the inferior must yield to the superior, with the order of necessity and of end considered.

F. The whole treatise on justice is reduced to two things: namely, to determining 1st. whether there is a right for someone, namely, whether the connection required for right is present in the concrete case; 2nd. whether the human act is just or unjust, i.e., whether it is terminated at this connection or against the same connection.¹³

¹³ E. Van Roey, De Obiectis et Actibus ad Justitiam pertinentibus, p. 10.