Question Two: Concerning the Subjective Parts

S. Th. II-II, q. 58, a. 5, 6, 7; q. 61.

252. Justice strictly so called has three subjective parts. — For thus the diverse species of a virtue are called. But justice strictly so called is divided into two species: legal or general (algemeene of wettelijke), and particular (bijzondere), and this latter is subdivided into two others: commutative (ruilende) and distributive (verdeelende). And thus there are three species of justice, or subjective parts, and only three.

It is proved: There is a threefold species of due or of right to be rendered: for the good due is either the good of the community as such (the common good), which is to be rendered to it by private persons who are its members; — or the good of a singular person, which is to be rendered to each one, either by society itself, — or by other private persons.

Hence a threefold order is required: the order of part to whole — the order of whole to part — the order of part to part. The first regards legal justice, which orders subjects to the republic; the second, distributive justice, which orders the republic to the subjects; the third, commutative justice, which orders a private person to a private person. A fourth order is not possible, and therefore neither is a fourth species of justice.

Legal justice is that by which the members of society as such (whether the prince or the subjects) give to society whatever is owed to it as such for procuring the common good. Distributive justice is that by which the republic, or its presiding officers, distribute common goods or offices and burdens among the members of the community according to the gifts, merits, faculties, and needs of each. Commutative justice is that by which a private man, or even society acting as a particular person, renders to a private man that which is owed to him from strict right.

253. The three species of justice differ among themselves:

1° By reason of object,

both a) principal object, which is the due of private persons toward society, — or the due of the community toward private persons, — or the due of a private person toward a private person.

Moreover this threefold due, according to St. Thomas, is of a diverse account: "for the account of common good and of singular good is diverse, just as the account of whole and part is diverse" (q. 58, a. 7, ad 2), and "what is common is due to someone in one way, and what is proper in another way" (q. 61, a. 1, ad 5);

and b) secondary object, which comprises either the acts of all virtues insofar as they can be ordered to the common good; — or distributions of goods and burdens; — or commutations among private persons: for although distributions and commutations pertain to the same things, nevertheless the use is diverse.

2° By reason of subject:

a) legal justice is principally and, as it were, architectonically or directively in the prince and rulers, as in those commanding the things which pertain to the common good; in subjects it is secondarily and, as it were, administratively, as in those executing the things which have been constituted by rulers and laws;

b) distributive justice is properly and formally in the superior presiding over common goods and distributing them; in subjects it is participatively, insofar as they are content with a just distribution;

c) commutative justice is in private persons.

Hence he to whom something is owed and he who owes are physically adequately distinct in commutative justice; in legal and distributive justice they are not physically adequately distinguished, but only morally, insofar as according to the estimation of men and according to the consideration of reason, one moral or juridical person is that of society, another that of the members.

3° By reason of equality:

A. In commutative justice there is absolute equality of thing to thing (for example, of what is given to what is accepted, of wage to labor, of the thing restored to the thing taken away), and therefore the mean of the thing is taken according to arithmetic equality, for example, 100 to 100.

B. In distributive justice there is relative equality of the proportion of things to be distributed to the persons to whom they are to be distributed; so that, just as one person exceeds another in dignity or need, so also the thing which is given to one person exceeds the thing which is given to another: for that which is owed by the whole to the part is so much greater as the part has a greater principality (merit, dignity) in the whole. And therefore the mean of the thing is taken according to geometric proportion, in which the equal is attended to not according to quantity but according to proportion, for example, as six is to four, so three is to two, because in each there is the same proportion.

C. In legal justice there is relative equality of the proportion of the person to the community.

254. Conclusion to be noted. — Hence commutative justice of itself obligates to restitution, because restitution makes equality of thing to thing; as is clear from the very notion of restitution, which is to render to another his own proper thing. — But the same is not proved for distributive and legal justice, insofar as they are such, because they make equality of thing to person, or of person to community.

Common goods, namely, are not simply and immediately the goods of the members, as if they were appropriated or owed to them, as their own proper things and their own possession (for they are goods of the community), but they pertain to them only under some respect and mediately, namely by destination, insofar as in them there is dignity or need for obtaining those goods.¹ Hence neither is there a complete right to the thing: a strict right to such or such a good; for these things do not yet pertain to this or that man, but to all. There is only a certain beginning of right (a non-strict right), by which they are owed by reason of condignity and of the community of which they are parts, insofar as the things which are of the whole are in some way owed to the parts.² Likewise, conversely, the goods of the members pertain only mediately to the community. The goods, namely, of the community are for the sake of the subjects, but they are not the subjects' goods; and conversely, the goods of the subjects sometimes ought to be ordered to the community, but they are not goods of the community. — And therefore in those goods, pertaining to distributive or legal justice, restitution is not proved to be owed, because no one is deprived of his own proper thing.

¹ A right to a common thing does not become a right to a private thing.

² "Just as part and whole in some way are the same, so that which is of the whole in some way is of the part; and thus when from common goods something is distributed to individuals, each one in some way receives what is his own," q. 61, a. 1, ad 2. Similarly, "the part is that which belongs to the whole; whence also any good of the part is orderable to the good of the whole," and can be due (q. 58, a. 5).

This is more confirmed: a) the good which commutative justice regards and commands (namely, that each one not be without his own things) perseveres as possible and commanded, whether before this justice is violated by unjustly taking away the thing of another, or after it has been violated. For once the injury has been posited, the other remains, because of your deed, deprived of his own thing, and right reason demands that by your deed this disorder cease; this happens through restitution to the equality of the thing or its equivalent.

On the contrary, b) legal justice: for if an act which ought to have been ordered to the common good was not ordered to it, it now becomes impossible to refer it, or to reduce the ordering of a past act to the common good; other new acts can be ordered, not that one. But no virtue can obligate to the impossible.

Similarly, c) distributive justice: for when this has been violated, it is not possible to restore the thing to its former state; for no one had a strict and complete right to the just portion, because the things distributed were not from the goods of someone, but from the goods of the community. Hence neither was the strict complete right of him who had less violated, because he was not deprived of his own proper thing in the strict sense. But after the distribution has been made, each acquires a strict right to his portion, nor can he be despoiled even partially without violation of commutative justice; and if the distributor restores from his private goods, for that reason he does not repair the unequal distribution of common goods; but if in a second distribution of goods the unjust distributor wishes to compensate, he will violate distributive justice in this second distribution, and the first distribution will remain unjust.³

³ It could be objected: 1° By the injury of distributive justice, inequality is introduced; this ought to be repaired. Therefore. — Resp. I distinguish the major: inequality is introduced without a permanent right to the goods which ought to have been received, concedo; with such a right, nego.

Yet by accident legal and distributive justice obligate to restitution, if commutative justice is at the same time injured, as often happens; as if a distribution is made from contract, for example, a competition, or if legal justice commands an act of commutative justice.

2° It is urged: He who was unjustly passed over has, from the unjust omission itself, a title so that he may receive compensation in a new distribution. Therefore. — Resp. I distinguish: insofar as this passing over leaves aptitude or present dignity on account of which some good is formally conferred, for example, a public office, concedo; insofar as compensation for the passing over would be the formal and sufficient reason, nego. For if after a distribution of offices badly made, the candidate who was more worthy has become less suitable because of illness, old age, etc. (or if a new one arises still more worthy), nothing now remains for him to expect for himself.

255. Corollaries. — 1. In every virtue, the general just commensuration is to that to which it ought to be equated, or the measure of reason; for justice properly so called, equality is either arithmetic equality of thing to thing, which is invariable for anyone, rich or poor, prince or subject; — or geometric equality of proportion to proportion.

2. Distributive justice according to itself in every act directly attends to the dignity and qualities of the person; on the contrary, commutative justice does so only by accident and according as the thing is diversified thereby.

For, as St. Thomas says, q. 61, a. 2, ad 3, commutative justice also considers the person, but indirectly, "insofar as the condition of the person contributes to the quantity of the thing: for the injury is greater if a prince is struck than if a private person is struck. And therefore the condition of the person in distributive justice is attended to according to itself (insofar as it per se influences the proportion of the thing); but in commutative justice according as by this the thing is diversified," and therefore by accident. Cf. Cajetan on this place.

3. "Legal justice attends to a certain equality tempered from each of the aforesaid: for insofar as any part gives to the whole, for example, any citizen to the city, according to the proportion of his powers, which are not the same in all, it seems to preserve an equality of proportion. But insofar as any part in rendering to the whole ought not to attend to what another renders, and therefore ought not to preserve proportion between that which another gives and that which it itself repays, but each part, without any account taken of the others, ought to give as much as it can and as is required from it, thus there seems to be a certain equality of quantities or arithmetic equality." Thus Goudin, in Philosophia, III, q. 6, a. 2, § 1.

It must be noted, however, that the equality which it primarily regards is equality of proportion; only secondarily and consequently, equality of quantity.

4. In commutative justice there is given counter-suffering or reaction, that is, recompensation of suffering to the preceding action, and indeed according to equality, so that the recompensated suffering or reaction is equal to the action, and someone suffers as much as he himself has done; as if, if he struck, he is struck back; if he inflicted damage, he is also damaged in his own thing; if he bought a thing, he also gives his own thing. But this recompensation or counter-suffering is not always to be attended to according to material equality (or in the same species), but according to equality of injury; for example, if someone strikes a prince, he is not only struck back, but is punished much more gravely; and if he steals, he must not only restore, but also repair the damage inflicted on the private person and on the republic; and in commutation it would not always be equal "if someone gave his own thing, receiving the thing of another, because perhaps the thing of another is much greater than his own" (a. 4).

But in distributive justice there is no counter-suffering, because in it equality of thing to thing, or of suffering to action, is not attended to, but according to the proportionality of things to persons.

256. Observations. — 1. Some among more recent authors, after Schmalzgrueber, posit a fourth species of justice, namely, vindictive justice, by which superiors afflict guilty subjects with due punishments for the common good. Yet this is rightly reduced to one of those named above: to commutative justice, insofar as the prince or judge inflicting punishment is held from strict office or quasi-contract to just punishment; — to legal justice, insofar as he acts with regard to the common good; — to distributive justice, insofar as he proceeds by geometric proportion and decrees punishments proportionally to the gravity of delicts; indeed to commutative justice, if he punishes in order equally to repair damage inflicted on someone. But insofar as vengeance is sought before the judge by a private person injured, in that person there is a virtue which moderates the appetite for external vengeance; yet it is not justice strictly so called, but a potential part or virtue annexed to commutative justice, because a private person is not strictly held to seek punishment; — but the prince or judge is strictly held to punish.

2. Several more recent authors hold only commutative justice as justice strictly so called,⁴ but the others are called justice by analogy: for legal and distributive justice are not toward another perfectly distinct, because the part is that which belongs to the whole, and the whole is that which belongs to the parts. Yet better with St. Thomas it is said that in them "the proper account of justice" is found (q. 58, a. 5): for society is a moral person distinct from the private persons who are its members, and has a perfectly distinct end; and therefore there is sufficient otherness so that between them there can be an order of justice.

⁴ Thus, after Lugo, Waffelaert, Pottier, the Mechlin authors, Cathrein. On the contrary, the Thomists, and also Vermeersch.

3. Social justice understood in the strict sense is nothing other than legal justice, which directly orders to the common or social good and renders what is due to the community. Certain authors, however, also call distributive justice social, but not rightly, because although it is exercised by society, nevertheless it does not render what is due to society, but to private persons. In a broader and general sense every justice is social insofar as it orders us to another.

Recently it has been said that social justice is a certain justice, specifically distinct from the others, by which the diverse classes or orders of citizens will to give to one another a part of the common good, especially under the economic respect.⁵ — But individuals, just as social orders, ought to will this; moreover, that justice of a diverse genus is exercised by the orders of citizens or by individuals, concerning economic goods or concerning others of a different genus, is a merely material difference from which a diverse species does not arise; — furthermore, since they say that this is done formally with regard to the common good, for this legal or general justice itself fully suffices, and the other virtues under its direction and command; — finally, neither is a fourth species of justice possible, as we noted in n. 252.⁶

⁵ Thus Hentzen, Commentaar op Quadragesimo anno, I, 3° B.

⁶ Cf. Kors, Sociale Rechtvaardigheid.

Moreover, as Pius XI acknowledges in the encyclical Divini Redemptoris against the communists, March 19, 1937, "it belongs to social justice to demand from individuals all that is necessary for the common good." And although therefore in his encyclicals the Pontiff wished to insist much that among individual citizens, and among individual classes or social orders of citizens, there be a more equitable distribution of goods — which of itself regards distributive justice — just as also that everyone's strict rights be preserved uninjured — which according to itself belongs to commutative justice — nevertheless those things do not belong to social justice except insofar as they are necessary for the common good.

4. In present times they speak much of international justice; but this is not a distinct species of justice, but is easily reduced to the species enumerated. For since the matter concerns due relations among various nations, which justice certainly ought to rule, nations must be considered as individual moral persons. Furthermore, the society of nations can be conceived and considered as a certain higher society and as the common good of all nations. And thus it is commutative justice itself which obligates individual nations to render to others what is owed to them; — and if certain goods accrue to them and are distributed by the society of nations, this ought to be done according to the rules of distributive justice, just as conversely, those things which individual nations are obligated to furnish and owe toward their common society and the common good of all and of the whole of humanity, pertain to legal justice.