Chapter I. On The Notion And Division Of Right

1. Notion. The name of right is taken in various ways; but among the various acceptions of right the following seem to be more notable for us:

1. The sentence or decree of the judge. Whence the judge says the right, when he pronounces a judicial sentence.

2. Law, or rather the complex of laws, by which it is determined what is just. In this sense we say: canon law, civil law, to study law, etc. Many authors call right accepted in this sense right taken objectively, and they attribute to it those things which pertain to laws.²

3. That which is just and which is owed to someone (δίκαιον). In this sense we say: to render to someone his right. This right is also called passive right, and it is the proper object of the virtue of justice, since justice is the constant and perpetual will of rendering to each one his right.

4. A moral faculty or power of doing, having, demanding, omitting something, etc.³ In this sense we say: someone uses his own right, the right of property. Concerning this last acception of right, which is also called active right or right taken subjectively, we shall chiefly treat in this chapter.

The given definition is explained. It is said, first: a moral faculty; therefore right is not a physical faculty, or a physical fact, as several non-Catholics have taught. Hence the following propositions were condemned in the Syllabus of Pius IX:⁴ Prop. 59: "Right consists in a material fact, ... and all human facts have the force of right." Prop. 61: "A fortunate injustice of fact brings no detriment to the sanctity of right." Therefore true right arises from natural law alone, or from that positive law which is conformable to natural or divine law; but it is false that civil government can concede some right contrary to natural or divine law. Therefore in the same Syllabus the proposition defended by the Positivists was deservedly condemned (39): "The status of the republic, as being the origin and source of all rights, is endowed with a certain right circumscribed by no limits."⁵

It is said, second: of doing something, etc.; from which words it follows that a right belonging to some man produces in others a strict debt or obligation not to violate that right. Right (Recht) and debt (Pflicht) are correlatives. But if nevertheless another wounds the right of another and despises his own debt, then he commits a true punishable injustice. Both, namely human right and debt, are ultimately derived from eternal law, since it is the source and principle of all other laws, rights, and duties. Hence it can be said briefly: there is no right without debt; there is no debt without God.

Note. The assertion of several Positivist jurists cited above, that the republic is the origin and source of all rights, was deservedly proscribed by Pius IX; for this assertion is not only most false,⁶ but in reality heretical, because it denies that natural and divine rights precede the very existence of the republic; moreover, it is injurious toward the native dignity of man, because it hands the individual man over into the narrow servitude of the state. Hence St. Thomas⁷ says forcefully: "Written [human] law, just as it does not give force to natural right, so neither can it diminish or take away its force, because neither can the will of man change nature."

The three acceptions of right enumerated above under nn. 2, 3, 4 can be coordinated in the following schema:

objective right	laws8
subjective right, which is either
passive right, i.e. that which is owed to someone	active right, i.e. the moral faculty of demanding something, etc.

Corollary. From what has been said it follows that rights do not belong to animals, because they are not endowed with moral faculties. Therefore no one ever commits injustice properly so called against an animal. For this reason theologians are accustomed to say briefly: animals are indeed an object, but not a subject of right.⁹

² Although those things which are predicated of this objective right can also ordinarily be predicated of law, nevertheless objective right and law are not altogether the same. Wherefore St. Thomas says: "Law is not right, properly speaking, but a certain account of right" (S. theol. 2, 2, q. 57, a. 1 ad 2; "The law is not the Right, but a norm of Right"). Hence not all laws can properly be called right, but only those which are concerned with passive right; for example, police laws are incongruously called police right; the law of loving oneself or one's neighbor is not right.

³ In German it is said: authorization (Befugnis) (cf. Gopfert, Moraltheol. II, § 74).

⁴ Denz. n. 1759, 1761.

⁵ Denz. n. 1739.

⁶ Cf. Cathrein, Moralphil. I, § 3, 1.

⁷ S. theol. 2, 2, q. 60, a. 5 ad 1.

⁸ Ground of right, laws of right, norms of right.

⁹ Cf. Gopfert, l.c.

2. Divisions Of Right. Among the multiple divisions of subjective right, the following seem to be the more principal:

1. By reason of origin, right is divided into natural, positive-divine, and human. Natural right is the moral faculty, belonging to man from the very principles of human nature, of doing, demanding, etc., something;¹⁰ for example, the right of defending one's own life, the right of possessing goods, etc. Positive-divine right is that faculty which belongs to man by force of a special divine decree; for example, the right of receiving the sacraments, the right of hearing the Gospel. Human right, which again is divided into ecclesiastical and civil, is that which emanates either from ecclesiastical law or from civil law. Thus parishioners have a right that the pastor administer the sacraments to them; citizens of the state, however, have a right that they be protected as to life and goods by the civil government.

Natural rights are either innate¹¹ or adventitious,¹² according as they arise of themselves from birth itself or from some contingent fact. An innate right is, for example, the right of children to receive suitable support from parents. An adventitious right is, for example, the right which someone acquires by the purchase of some thing. Natural right, and the same holds for positive right, is also divided into abdicable right,¹³ for example, the right to some possession, and inabdicable right;¹⁴ for example, a husband cannot abdicate his right over his wife, so that another may licitly live with her maritally.

Finally, natural right is divided into natural right strictly so called and the right of nations, which comprises conclusions necessarily deduced from natural right and therefore observed among all nations. The right of nations, therefore, is as it were a middle between natural right and civil right. Moreover, the right of nations is not always taken in the same sense.¹⁵

2. By reason of effect, strict right and non-strict right are distinguished. Strict right is that which is so closely connected with man that it cannot be taken away from him without manifest injury. A right of this kind is, for example, the right of legitimate property. For when someone takes away my legitimate property from me, he wounds my strict right and is held to repair the wounded justice. Non-strict, or broad, or imperfect right is that whose wounding does not constitute injustice properly so called, but a certain inconvenience more or less grave. The common poor man has a non-strict right to alms; a man who has deserved well of the republic has a non-strict right to honors, etc. Sometimes strict right is also divided against equitable right, which is then taken as a certain correction of excessively hard positive right, and which attends rather to the mind of the legislator than to the letter of the law. Cf. what was said above, I, n. 231, concerning epikeia.

3. Strict right is subdivided into ius in re and ius ad rem. This division is very celebrated both in ecclesiastical law and in civil law. Ius in re, or real right,¹⁶ is that by which someone enjoys some thing already legitimately existing, at least in some way, in his disposition. But what conditions are necessary in order that some thing be legitimately in the disposition of someone is usually determined by positive laws.¹⁷ This right confers a real action, that is, an action which immediately reaches the thing itself, wherever finally this thing may be found, for example, if someone has a mortgage over some thing.

Ius ad rem,¹⁸ or personal right or acquired right, is that which someone has so that some thing not yet possessed may become his. This right gives a personal action,¹⁹ which immediately reaches the person detaining the thing and only mediately the thing itself. Hence if someone has only ius ad rem, he cannot occupy that thing, but must first, if this is possible, call into judgment the person who detains the thing and refuses to hand it over; for example, if Peter owes me 1000 francs, I cannot licitly take away an equal value from him, but I must first demand from him the return of the money owed. Thus at least ordinarily. Ius ad rem is therefore the way to ius in re.²⁰

¹⁰ S. theol. 2, 2, q. 57, a. 2. Concerning other acceptions of natural right less customary today, see Suppl. q. 65, a. 1 ad 4. That natural right truly exists is denied by some modern jurists, but it was already admitted in the Code of Justinian and manifestly follows from the existence of natural law; cf. above I, 152.

¹¹ Innate right.

¹² Acquired right.

¹³ Alienable right.

¹⁴ Inalienable right.

¹⁵ Cf. St. Thomas, S. theol. 1, 2, q. 95, a. 4; 2, 2, q. 57, a. 3; Cathrein, Moralphil. I, 8, 6, § 2.

¹⁶ Real right, right in a thing.

¹⁷ Cf., for example, Cod. civ. Germ. § 854 sqq.

¹⁸ Right of claim.

¹⁹ Personal right of action.

²⁰ Cf. especially Gopfert, Moraltheol. II, 51 b; or Tanquerey, De iustitia n. 18; or Muller, Theol. mor. II, § 93.

3. On dominion.²¹ Ius in re is also called dominion, which is commonly defined: the legitimate faculty of disposing of some thing as one's own.

It is said, first: legitimate faculty, that is, a faculty granted by right, whether natural or positive. Therefore a man having dominion over some thing can dispose of it only within the limits placed by law. Hence a rich man dissipating his own goods does not indeed sin against commutative justice nor against positive right, but he sins against natural right, committing the sin of prodigality, which indeed is against liberality, which is a potential part of justice.

It is said, second: of disposing of some thing as one's own. Therefore curators and dispensers of things belonging to another do not have dominion over those things, since they do not dispose of their own things but of another's. The exercise of this faculty of disposing is sometimes bound by civil law or statute; for example, children cannot dispose of their own goods.

Divisions Of Dominion. Dominion has received many divisions, of which the principal are the following:

a) Divine dominion and human dominion.

To God there belongs, by the title of creation and conservation, the most perfect dominion, according to that saying: "The earth is the Lord's and the fullness thereof, the world and all who dwell therein."²² By delegation from God, dominion belongs to man, who therefore cannot use it according to his own will, but according to the will of God delegating. Man is the steward of God. Human dominion is subdivided into:

b) Full dominion and semi-full dominion.

The first is the perfect faculty of disposing both of the thing itself and of its fruits. The other is the faculty of disposing either of the thing or of its fruits. But this semi-full dominion is subdivided a) into radical, or direct, or naked dominion, if someone indeed retains the ownership of the thing, but does not have free disposition either of the thing itself or of its fruits;²³ and b) into indirect or useful dominion, which extends either to the proper use of the thing and its fruits, with the substance of the thing preserved, without the fruits of the thing being able to be alienated, and then it is called use (Gebrauch); or it extends to total dominion of the fruits, even with the faculty of alienating them, while nevertheless the substance of the thing itself is preserved, and then there is usufruct (Niessbrauch). These two modes of dominion especially have place in contracts of leasing, emphyteusis, etc. Use and usufruct legitimately obtained introduce certain rights and debts both for the owner of the thing and for him who has useful dominion. The civil laws of each region must be attended to.²⁴ Generally speaking, the usufructuary has full dominion of all fruits which in any way arise from the thing. Treasures perhaps found in that thing are excepted,²⁵ since they are not properly fruits of the thing. But the usufructuary is held to pay annual taxes, which are considered to be burdens of the fruits; he is held to preserve the thing in the state in which he received it, and therefore he must make small repairs. Greater repairs, however, must be made by the owner himself. Then he is held to administer the thing as a good father of a family.

c) High dominion and low dominion.

The first is that which the supreme legitimate power has of disposing, sometimes from grave cause, of the goods of private persons for the good of the community. The other is the dominion of private persons, to which the definition given above applies. High dominion²⁶ is not dominion properly so called, since the supreme legitimate power is not a mistress possessing the goods of all subjects, nor can it convert them to its own advantage. Such high dominion may not licitly be exercised unless a) the true necessity of the community demands it, b) equivalent compensation has been given, and one subject is not burdened more than another. High dominion is exercised not rarely in our days in so-called expropriations for the construction of railroads and other roads.

To low dominion, which sometimes is also called private dominion,²⁷ there is opposed community of goods. Since in our days Socialism proclaims with a loud voice that private dominion is nothing other than theft, and that community of goods must be established, it is necessary here to say a few things:

On The Origin And Licitness Of Property And Private Dominion

²¹ Right of ownership, right of disposal, droit de propriete.

²² Ps. 23:1.

²³ Dominion of this kind, radical dominion, is had, for example, by religious over their goods after simple profession, and generally by all to whom free disposition of their own goods is forbidden by law, as, for example, wards.

²⁴ Cf. Cod. civ. Germ. § 1030 sqq.; Cod. civ. Gall. art. 578 sqq.

²⁵ Cod. civ. Germ. § 1040; cf. below n. 46.

²⁶ Superior ownership right, haut domaine, right of expropriation.

²⁷ Private ownership right.

4. Authors do not agree whence private dominion first arose. Some (Hugo Grotius, Pufendorf) wish that it arose from a social pact, by which men agreed that goods previously common to all would thereafter be divided among individuals. Others (Hobbes, Montesquieu, Bentham, several moderns) teach that the division of goods was first made by civil law. Others, namely modern Socialists, teach that the division of goods was introduced by violent occupation, so that the stronger, having overcome the weaker, violently and unjustly occupied goods previously common. Others have devised still other theories.²⁸

These opinions being left aside, it is better and more correct to distinguish in this matter the question of right and the question of fact. Certainly, sometimes private dominion was made by first occupation, as when inhabitants arrived in a land up to that point uninhabited. Sometimes, however, private dominion is constituted by civil law, as when the civil government assigns lands to be cultivated to certain farmers. Finally, sometimes the division of properties was made from a social pact, as we read in Sacred Scripture concerning the division of lands between Abraham and Lot.²⁹ But as to the question of right, without doubt private dominion (circumscribed by just limits) follows as a conclusion from natural law itself, not indeed in the sense that community of goods is directly against natural law,³⁰ but that, all circumstances considered, for the most part it is not so conformable to natural law. This is explained in this way by the Angelic Doctor:³¹ a) Because each person is more solicitous in procuring something which belongs to himself alone than that which is common to all or to many. For care concerning things exacts fatiguing labor, and if one must labor for the common good, many shrink back from the fatigue. b) Because human affairs are treated in a more orderly way if to each person there is incumbent the proper care of procuring some thing; but there would be confusion if each one indiscriminately procured anything whatever. c) For the preservation of peace. Hence we see that many and frequent quarrels arise among those who possess one and the same thing in common.

Deservedly, therefore, Leo XIII said in the Encyclical Rerum novarum: "To possess things privately as one's own is a right given to man by nature." Pius X proposed the same doctrine in the Motu proprio of 18 Dec. 1903 (Prop. 5). But if St. Thomas (and with him several theologians) teaches that private dominion was introduced from the ius gentium, under the name of the ius gentium he does not understand the so-called international law of peoples, but a right derived from natural law itself.³² Behold his words: "In another way something is naturally commensurate with another, not according to the absolute account of itself, but according to something which follows from it, for example the property of possessions; for if this field be considered absolutely, it has nothing by which it should be this man's rather than that man's; but if it be considered in respect to the suitability of cultivating it and to the peaceful use of the field, according to this it has a certain commensuration to this, that it be of one man and not of another."³³ And the same Angelic Doctor says: "Those things belong to the ius gentium which are derived from the law of nature, as conclusions from principles."³⁴ From all these things it is manifestly drawn out that private dominion is something licit, but Communism preached by the Socialists must be rejected.

²⁸ Cathrein enumerates seven diverse theories (Moralphilos. II, 44).

²⁹ Gen. 13:8 sqq.

³⁰ Hence St. Thomas says: "The property of possessions is not against natural law, but is superadded to natural law through the devising of human reason" (S. theol. 2, 2, q. 66, a. 2 ad 1).

³¹ S. theol. 2, 2, q. 66, a. 2. Franc. Walter, Das Eigentum nach der Lehre des hl. Thomas von Aquin und des Sozialismus (1895) 7 sqq., and Franc. Schaub, Die Eigentumslehre nach Thomas von Aquin und dem modernen Sozialismus (1898) 259 sqq., wrote more broadly concerning this matter.

³² Concerning the diverse acceptions of the ius gentium, cf. Cathrein, Moralphil. I, 8, 6, § 2.

³³ S. theol. 2, 2, q. 57, a. 3.

³⁴ Ibid. 1, 2, q. 95, a. 4.

5. Scholion. On The Enemies Of Private Dominion. That private dominion is illicit and therefore to be abolished was taught by: a) the Apostolics (Apotacticae, Renuntiators), asserting that a man cannot be saved unless, after the example of the apostles, he lives free from any possession;³⁵ b) the Manichaeans, saying that to possess fields, houses, and money is illicit;³⁶ c) the Waldenses and Albigenses, teaching that at least perfect men must renounce every possession. But especially with all their strength there fight against private dominion: d) modern Socialists and Communists.

Modern Socialism is usually joined with Anarchism, with Indifferentism in matters touching religion, indeed almost always with a fight against every positive religion. In present times Socialism widely rages almost everywhere on earth and grows day by day. Although the Socialists are divided among themselves, nevertheless almost all agree in the principle stated by Karl Marx: Capital is pure and putrid theft, because it has been born from the retention of that money which was owed to workers for their labors. Likewise the following demands are proposed by all Socialists:

1. The right of choosing deputies completely general both for men and for women (from the twentieth year of age).

2. The right of choosing all superiors and officials of the state.

3. Religion is a private matter, that is, each person should exercise the religion which he prefers.

4. A lay school without religious instruction.

5. Separation of Church from State.

6. Abolition of all indirect taxes.³⁷

Things To Be Noted For Practice. Certainly it is not forbidden that workers and other men of lesser condition strive by any legitimate means both to have a better wage and favorably to raise their condition; nevertheless it is never licit to employ means forbidden by Catholic moral Theology in order to obtain that end. Several associations imbued with Christian principles already exist for improving the lot of workers. The priest must cautiously and prudently foster associations of this kind; but all workers must be deterred from socialist associations and especially communist ones, since these, as mournful experience bears witness, almost always ruin the religion and good morals of workers, and do not make their material lot better. Hence the priest with all his strength should teach workers that private dominion is licit, and that the possessions of the rich are not always theft; that one must labor in the sweat of his brow, as already after the fall of Adam was foretold by God to the whole human race; that true human happiness is not situated in great possessions, but in the good use of material things, and that it is better to need less than to have more, as St. Augustine says. Above all he should also promote the fervent exercise of religion both among the rich and among workers. For because charity has grown cold, thence hardness has arisen among the rich. But since faith has become tepid among all, thence workers no longer with all their strength long for eternal happiness, but through right and wrong seek earthly happiness and are carried away by monstrous passions.

Socialism does not everywhere have the same degree of perversity, whence the circumstances of individual regions must be considered. But generally speaking, all who freely and positively adhere to the sect of the Socialists (and a fortiori of the Communists) are not worthy of sacramental absolution unless they seriously promise to leave that sect as soon as they can. More mildly can those be treated who adhere to the Socialists not freely but compelled by grave fear, and not actively but merely passively. For if these seriously promise the confessor faithfully to observe the precepts of religion and to guard against scandal according to their powers, they can receive the sacraments. Nevertheless they must gradually, according to their powers, separate themselves from the socialist sect. Several authors, such as Heiner, D'Annibale, Ballerini-Palmieri, etc., teach that positive socialists fall into the excommunication laid upon those who plot against civil or ecclesiastical power. Whatever may be said of this opinion,³⁸ this is certain: socialists greatly harm the Catholic religion.

³⁵ Cf. St. Epiphanius, Adv. haer. 61; St. Augustine, De haer. 40; St. John Damascene, De haer. 61; see also Wetzer and Welte, Kirchenlex., s. v. "Apostoliker."

³⁶ Cf. St. Augustine, De mor. eccl. l. 1, c. 35, n. 78.

³⁷ The history and diverse forms of Socialism may be seen in Tanquerey, Theol. mor.: De virtute Iustit., n. 54 sqq.

³⁸ Cf. below in the treatise on censures, III 516.