Article Second. On Justice.

§ 1. On the Nature of Justice.

266. Notion of right. The notion of justice supposes the notion of right, which is its object. Right, in its proper and primary sense, signifies the inviolable moral power of a person to have, do, or exact something; in this sense we say: he uses his right, he transfers his right to another. Secondarily, it signifies that which is just, equal, or what is owed to another, namely the objects themselves about which that power turns; in this sense we say: to each one his own right must be given. These two significations of right are correlative; the one exhibits the thing owed, the other the title of the debt: for nothing would be owed to anyone unless he had the power of exacting or retaining it. Now right, insofar as it signifies that which is owed to another, constitutes the object of justice.²

a. The power is called moral, both because it is not physical and because it is according to right reason; it is called inviolable because each one is bound to observe it, so that it cannot be violated without fault. But the reason and foundation of this inviolability is the dignity and independence of the person, which consists in this, that man has the character of an end, not of a means, and that he ought to tend toward his end, not be driven to it. Since he cannot effect this unless he can order certain created goods to his good and end, he is furnished with this twofold and inviolable power: of ordering himself to his end, and of applying certain goods as means for obtaining his proper end and good.

b. Moral power or right is distinguished in two ways: improperly so called, which is founded in superiority and cannot be rendered to equality, of which kind is God's right to worship, a father's right to obedience; and properly so called, which is founded in personal independence and can be rendered to equality, of which kind is the laborer's right to wages.

c. A threefold debt is distinguished: a. moral debt, which arises only from the honesty of virtue, without there being in another the power of exacting it, as is the debt of charity, mercy, gratitude, truthfulness; therefore he who does not observe this debt does not injure the right of another, but only falls short of the honesty of the virtue which each one must observe in his actions. b. legal debt, which arises from right improperly so called, which another can therefore exact as owed to himself, but which nevertheless cannot be rendered to equality, as is the debt of religion, piety, obedience.³ c. juridical debt, which arises from right properly so called, which another therefore exacts as owed to himself by his own right, and which also can and must be rendered to equality, as is the debt of justice.

d. Right, insofar as it signifies a power, is subjective right; insofar as it signifies a debt, it is objective right. To subjective right there corresponds on the other side a debt or juridical office, at least of not hindering another in the use of his right. Wherefore a juridical relation (das Rechtsverhaltnis) involves both: right and juridical debt.

¹ St. Thomas, II-II, q. 57 ff.; q. 61. Molina, De iustitia et iure, tract. 1. Lessius, De iustitia et iure, l. 2, sect. 1, c. 1 ff. Lugo, De iure et iustitia, disp. 1, sect. 1. Holzmann, Theologia moralis, IV, n. 286-336. Vermeersch, Quaestiones de iustitia (Bruges: Beyaert, 1901), n. 1-76. Pottier, De iure et iustitia (Liege: Ancion, 1900). Victor Cathrein, Die Cardinaltugend der Gerechtigkeit, Zeitschrift fur kath. Theologie 1901, p. 635 ff.

² Cf. what Lugo (De iustitia, disp. 1, n. 2 ff.), Vermeersch (loc. cit., n. 5 ff.), Cathrein (Moralphilosophie, I, p. 415 ff.), and others dispute concerning the nature and properties of right, subtly as well as ingeniously.

³ Legal debt is so called because this debt can also be urged by human law.

267. Division of right. Right properly so called, insofar as it is a legitimate power, is distinguished in two ways: right in a thing and right to a thing.

a. Right in a thing is the legitimate power which someone has in a thing already his own, of which kind is the right in a thing bought. This right immediately affects the thing itself and therefore is called real right (dingliches Recht).

a. Therefore he who has right in a thing has the thing itself obligated and bound to himself; wherefore this right gives a personal and real action, namely, the one having right in a thing can pursue it in court against whomever possesses it, and take it wherever he has found it.

b. For acquiring right in a thing three conditions are required: a. a just title, as donation, purchase, right of inheritance; b. that the thing be determined as an individual; c. delivery of the thing, at least for the most part.

b. Right to a thing is the legitimate power which someone has that some thing may become his, of which kind is the right to a promised thing, the right to payment of a debt. This right does not immediately affect the thing itself but the person, that he deliver the thing owed, and therefore it is called personal right (Forderungsrecht).

a. Therefore he who has right to a thing has not the thing itself, but the person, bound and obligated to himself for delivering the thing to him; wherefore this right gives only a personal action against the debtor, but not an action against the thing itself or against a third person who perhaps possesses the thing owed.

b. For acquiring right to a thing, which is also called inchoative, nothing else is required except a just title, by force of which the thing can be exacted. Titles of this kind are the law which grants this right, the fact from which it arises, as death, from which arises inheritance by intestacy before acceptance, donation, sale before delivery of the thing. In some codes sale already before delivery of the thing produces right in the thing.

268. Notion of justice.¹ Justice is the moral virtue which inclines man to render to each one his own right, or what is owed to him, according to equality.

a. The name justice is taken in three ways:

a. In a broader and improper sense it denotes both the complex of all virtues together and any virtue whatever, since it is some part of that complex, some justice. In the former sense it is said: Blessed are they who hunger and thirst after justice.² Thus it befits us to fulfill all justice;³ in the latter: Take heed that you do not do your justice, that is, your mercy, before men.⁴

b. In a stricter and improper sense it signifies some genus of virtues, namely those moral virtues which order man to another, whether God or man, and which are reduced to the cardinal virtue of justice as integral and potential parts.

c. Strictly and properly it signifies the moral and cardinal virtue which the proposed definition exhibits.

b. Three things belong to the nature of justice:

a. That it be toward another: for no one can properly be just or unjust toward himself. Therefore distinction of person is required between him who renders the debt and him to whom it is rendered, so that justice may have a place, whether the person is physical or moral.

b. That what is rendered to another be owed to him by his own right. That debt is called owed by one's own right which is founded in the personal dignity of the other and in his independence which results from it (266, b).

Since justice by its nature is toward another and is founded in individual independence, theologians asked whether a debt of justice intervenes between father and son, since the son is something of the father and what belongs to the son belongs to the father. The question is solved by making a distinction between father and son insofar as they are father and son, and insofar as they are men. Therefore in those obligations which exist only because the one is father and the other son, the nature of justice does not intervene between them; but in those obligations which exist because they are men, the nature of justice does intervene between them. Hence if a father does not nourish his son, and a son does not obey his father, as each is bound, they do not injure justice; but if a father detracts from his son, and a son steals from his father, each injures justice.⁵

c. That the debt be rendered to another according to equality. He renders the debt according to equality who pays it adequately, or in such a way that he no longer owes anything further.

c. The material object of justice is everything which is owed to another by his own right; the formal object is the natural honesty which is discerned in this, that to each one there be rendered adequately what is owed to him: for justice intends this on account of the natural honesty intrinsic to it, that equality be established between the right of the one and the debt of the other.

¹ The opinions of authors concerning justice and its species are various. Many attribute the nature of justice properly so called to commutative justice alone, which they distinguish from distributive and legal justice by the name of justice simply perfect or most perfect. Others, on the contrary, attribute the nature of justice properly so called both to commutative justice and to distributive and legal justice, and refer them as true species to justice generically accepted. This opinion, which among the older authors Tanner, Holzmann, Metzger, Coel. Mayr, and others defend, among recent authors P. Vermeersch learnedly champions (loc. cit., n. 1-70).

² Matt. 5, 6.

³ Matt. 3, 15; cf. Matt. 1, 19; Luke 1, 6.

⁴ Matt. 6, 1.

⁵ Cf. St. Thomas II-II, q. 57, a. 4. Ballerini-Palmieri III, n. 4.

269. There are three species of justice when account is taken of the relations which actually exist in civil society: commutative, distributive, and legal justice. For in the republic there is a threefold order in which to another his own right must be given: the order of part to part, citizen to citizen, which order commutative justice rules; the order of the whole to the parts, the community to the citizens, which distributive justice rules; the order of the parts to the whole, the citizens to the community, which legal justice rules.

a. In the common nature of justice all agree univocally, since the three elements required for the essence of justice are found in all; nevertheless each one participates in it in a specifically diverse mode. The three species of justice agree in this, that their object is right properly so called and therefore perfect, namely that which is founded in the dignity and independence of a person, whether physical or moral, and that they render this right according to equality. But they differ in this, that the nature of the right and of the debt which they regard is essentially diverse, and in like manner the equality which they establish between debt and what is received is specifically diverse.

b. There are three rights properly so called, but specifically diverse: a. the right of a private person toward a private person, or of a part toward a part of the same community, which commutative justice regards; b. the right of a private person, or part of society, toward society, which distributive justice regards; c. the right of society as such toward private persons, or parts of society, which legal justice regards. From the threefold diverse right there arises a threefold diverse debt consonant with the right, which the three virtues of justice pay: the debt of a private person or part to furnish that which a private person exacts by his right; the debt of the community as such to furnish that which a private person, a member or part of the same community, exacts by his right; the debt of a private person or part to furnish that which the community exacts by its right from its parts and members.

270. Commutative justice is that by which a private person gives to a private person what is owed to him by right.

a. It is called commutative because it turns especially about exchanges, purchases and sales, and other contracts. Citizens among whom exchanges are made constitute the subject of commutative justice.

b. The material object of commutative justice is the goods of each private person which belong exclusively to him. In exchanging these goods, to each one there must be rendered what is owed to him, or care must be taken that no one be deprived of his own thing. The formal object is the honesty of equality between the right of one private person and the juridical debt of another likewise private person, both of whom are members of the community.

c. It belongs to all species of justice to render to another the debt owed by right; but it is peculiar to commutative justice to render to another his own thing, either completely or at least inchoatively (n. 267, b), since its material object is things which have already in some way been made the proper things of another, as when the debt of wages is rendered to a laborer.

d. Since there is a manifest difference between the right which commutative justice regards and the right which distributive justice regards, nothing prevents the former from being able to be called strict right, the latter less strict right, although both are true right, properly so called and perfect, inasmuch as each contains in itself the integral nature of right described above. For the right which commutative justice regards is a right of property, or right in a thing, or at least to a thing.

271. Distributive justice is that by which the community gives to citizens what is owed to them by right; for to citizens, by the very fact that they are parts of society, there belongs the right of exacting that they be assisted by society in the pursuit of their end, according as the nature of society bears; and conversely there rests upon society the office of caring that from common goods there be given to each what is owed to them.

a. The office of distributing common goods inheres in those who represent society, princes and their ministers: for these alone can act for society and in the name of society. Therefore these constitute the subject of distributive justice.

b. The material object of distributive justice is common goods, of which kind are the protection of rights, money for erecting public schools, subsidies for promoting the sciences and arts, for relieving the need of citizens, etc.; public offices, common burdens. The formal object is the honesty of equality between the less strict right of the private person, insofar as he is a part of the community, and the juridical debt of the community as such.

c. Distributive justice must render according to equality what is owed to citizens; nevertheless that equality is not of thing to thing, but of proportion of things to citizens, so that goods are proportioned to merits, subsidies to needs, burdens to the faculties of citizens.

d. The injury of distributive justice is called acceptance of persons. This properly consists in this, that in the distribution of common goods attention is paid not to the dignity of persons, but to other qualities, e.g. consanguinity, friendship.

272. Legal justice is that by which there is given to the community what is owed to it for procuring the common good.

a. The material object is constituted by certain acts of diverse virtues which the common good exacts: for society then has itself well if its members are well disposed and ordered in relation to God, to themselves, to other members of the same society, and to society itself. These acts, as owed to society, are commanded either by positive law or by natural law. The formal object is the honesty of equality between the right of the community as such and the juridical debt of the part as such.

b. As regards the subject of legal justice, this virtue is found both in the prince and in subjects, but it is exercised by them in diverse acts: the prince exercises it by prescribing those things which are necessary for procuring the common good; subjects by obeying and carrying out those things which have been prescribed for the common good.

c. Legal justice renders a debt according to equality insofar as it furnishes what is owed to the community, for example, pays tribute, performs military service, in such a way that the debt is now extinguished.

d. This justice is called legal, both because law determines the acts of virtues which are necessary for the common good, and because through it the citizen conforms himself to law; it is called general, not because it has no special object, but because its material object is the acts of all other virtues, insofar as they are owed to the community.

e. Those who in this time treat of the social question often speak of social justice, by which name they signify either legal justice, because its formal object is the common or social good of men living in civil society, or at the same time legal and distributive justice, insofar as the latter exacts that common advantages and burdens be distributed according to the norm of equality.

Note. Vindicative justice, which afflicts the guilty with a just punishment, is reduced by some to legal justice, insofar as the common good exacts that the superior punish crimes and the guilty man, by obeying the sentence of the judge, pay the penalty. By others it is reduced to distributive justice, insofar as it inflicts punishments congruous with the quantity of crimes. Finally, by others it is considered as a special virtue distinct from the rest, whose formal object is the natural honesty which is contained in this, that the moral order injured by a crime be in some measure repaired through punishment. Yet in no way can it be numbered as a fourth species among the subjective parts of justice, because the formal nature of justice does not belong to it. For justice properly so called regards a true right in him to whom the debt is rendered; but no one would say that the guilty man has a right to punishment. Therefore vindicative justice, if it is considered as a special virtue, is referred not to the subjective parts, but to the potential parts of justice, and is called vindication.

273. Parts of justice. 1. The subjective parts of justice are commutative, distributive, and legal justice.

For establishing an accurate division of the cardinal virtue of justice, justice generically accepted must immediately be divided into two species, namely general and particular justice, according as the good about which justice turns is owed to the community or to a private person. Then particular justice is again divided into two species, into distributive justice, which has society, a moral person, for its subject, and commutative justice, which has a private person for its subject.

2. The integral parts of justice are two: to do good and to decline from evil.¹

The reason why, as integral parts of justice, two elements are posited which are found in all virtues must be taken from the peculiar nature of justice. For justice has this as proper to it, that it can and must be observed in a twofold mode, through a negative act, not taking what belongs to another, and through a positive act, rendering the debt, so that even he is truly called just who does not take what belongs to another. On the contrary, other virtues, e.g. temperance, can be observed in only one mode, namely through positive acts exact according to the norm of temperance; for he who does not eat is not called temperate. Now through negative acts of justice we decline from evil, but through positive acts we do good.

3. The potential parts of justice, which have some likeness with justice but nevertheless fall short of the perfect nature of justice, are all virtues which are toward another.

But they fall short of the perfect nature of justice:

a. some, because they do not regard debt: gratitude, vindication, truthfulness, friendship, liberality, equity;

b. others, because they do not regard juridical debt, and the legal debt which they do regard is so great that it cannot be rendered according to equality: religion, piety, observance, obedience.

§ 2. On the Obligation of Justice.

¹ St. Thomas II-II, q. 79, a. 1.

274. Principles. 1. Commutative justice obliges of itself under grave obligation and with the burden of restitution, if it has been injured.

a. The end which commutative justice regards is of great moment, namely both private and public good: for by preserving another's right uninjured, it provides both for mutual charity and conjunction among men, and for public peace and tranquillity. Hence St. Paul says: Do not err: neither fornicators ... nor thieves ... nor the rapacious shall possess the kingdom of God.¹ Yet it admits smallness of matter, because an injury of this justice in a slight thing does not gravely oppose its end.

b. Commutative justice exacts that to each one be given what is his; therefore if through an injury of commutative justice there is taken from another what is his, either by theft or by damage-infliction, justice itself exacts that what has been taken from another be rendered; but it is rendered through restitution; therefore it obliges to restitution.

2. Legal and distributive justice likewise oblige under grave obligation, because the injury of each of these forms of justice also can introduce grave disorder into society; nevertheless of themselves they do not oblige with the burden of restitution.

To explain why injury of commutative justice, but by no means injury of distributive justice, induces an obligation of restitution, these things are to be noted. Injury of commutative justice affects a good which already in some way, at least inchoatively, has been appropriated to one or to individuals, which therefore already belongs to one or to individuals by strict right, in a thing or at least to a thing. But injury of distributive justice affects a good which in no way, not even inchoatively, has been appropriated to one or to individuals, which therefore by strict right belongs not to individuals but to the community alone, and is only destined to be appropriated to individuals through distribution. The same must be said concerning the injury of legal justice through defrauding taxes.

3. Accidentally, injury of legal, vindicative, and especially distributive justice also obliges to restitution, namely when commutative justice is injured at the same time. For it often happens that by reason of a pact, either explicit or implicit, the obligations of the other species of justice must also be observed from commutative justice, and therefore their injuries likewise induce an injury of strict right.

a. With distributive justice, commutative justice is injured at the same time: a. in distributing goods, if the distributor confers offices and benefits on the unworthy, so that subjects suffer damage on account of bad administration, which a superior, both ecclesiastical and civil, is held by strict debt to avert; b. in distributing burdens, e.g. in imposing taxes, when a greater burden is imposed on subjects than the common good exacts according to the faculties of individuals. For subjects have a strict right not to be deprived of their goods unless the common good exacts this according to the measure of their powers.

b. With vindicative justice, commutative justice is injured at the same time, both if delinquents are not punished with damage to others, and if they are struck with a punishment more grave than is just. For the judge is held by strict obligation toward citizens to impede by just punishment that delinquents inflict damages, and toward delinquents not to punish them beyond what is condign. Therefore if the guilty man is punished with a punishment more grave than is just, through this excess of punishment commutative justice toward the guilty man is injured at the same time.

c. With legal justice, commutative justice is injured at the same time if the prince by unjust laws and statutes inflicts damage on subjects in their goods. For subjects have a strict right of exacting that damage in their goods not be inflicted on them.

¹ 1 Cor. 6, 9.