Chapter — Prümmer, Manuale Theologiae Moralis
Chapter II. On The Object Of Right Or Dominion
The whole doctrine concerning the object of dominion is comprised in five principles:
6. Principle 1. Man has useful dominion, but not absolute dominion, in the goods which are intrinsic to him, namely those of soul and body.
The reason is that man is as it were God's steward, to whom diverse talents of body and soul have been entrusted to be administered for attaining his supernatural end. Moreover, a steward does not have absolute dominion of the goods entrusted to him, but is held to administer them according to the good pleasure of the lord; nevertheless he can use the talents given for his own advantage. From this principle there follow very practical corollaries, namely:
Corollary 1. Man arrogates to himself a right which he does not have when he destroys the life of the body by suicide. "You are, O Lord, he who has power of life and death," it is said in Sacred Scripture.39 Likewise man commits an injury against God if he corrupts bodily health or calls it into danger without sufficient reason. But much greater is the injury brought against God when man through mortal sin loses the life of his own soul.
Corollary 2. Man cannot treat his own body just as it pleases him. Hence man cannot licitly cut off his own members, procure for himself surgical sterilization or vasectomy, unless this is necessary for driving out a grave sickness; he cannot use his own body for lust; but he can, indeed he must, even with bodily detriment, guard the life of the soul; he can also, on account of the exercise of virtues and for the great utility of the soul, expose bodily health to danger or diminish it, for example by fasting, undertaking grave labors, setting out to foreign missions for the preaching of the Gospel, etc.
39 Wis. 16:13.
7. Principle 2. To man there belongs strict dominion (although limited) over his own reputation.
The reason is that reputation truly is a property which man has acquired for himself by his own labor, namely by the honorable exercise of his faculties, or at least from inheritance. A good reputation is a most precious good. Hence it is said in Sacred Scripture: "A good name is better than many riches."40 Hence he commits a great injury who takes away or diminishes another's good reputation by calumny or detraction.41
Nevertheless man's dominion over his own reputation suffers limitations. For since a good reputation is so necessary for the happy and fruitful operation of man, a grave cause is truly required in order that its voluntary loss may be licit. Hence Sacred Scripture also admonishes: "Have care for a good name: for this will remain for you more than a thousand precious and great treasures. The number of days of a good life: but a good name will remain forever."42 Therefore, just as it is not licit to dissipate one's temporal goods, so a fortiori it is not licit to call one's reputation into danger without grave cause. But man is gravely prohibited from diminishing his own reputation, especially if his infamy redounds upon his neighbor, for example upon his family, upon the convent in which he lives, if a good reputation is very necessary for exercising the duties of his state. Hence, for example, a priest cannot permit (without seriously contradicting) the wounding of his own reputation, because the faithful will not have confidence in a priest whose reputation is stained. Nevertheless, from a reasonable cause, man can voluntarily make a loss of his own reputation, for example for exercising humility, for celebrating the mercy of God, etc. Hence St. Augustine wrote the book of the Confessions, St. Francis of Assisi wished to be regarded as foolish, etc. Therefore the general rule is: it is licit to suffer the loss of one's own reputation if the good effects following from it prevail over the evils. In practice it is usually safer not to trust too much in one's own judgment in this matter, but to seek the counsel of a prudent man.
40 Prov. 22:1.
41 How restitution must be made after such an injury, see below n. 187, where damage-inflicting is treated.
42 Ecclus. 41:15 sq.
8. Principle 3. Man has dominion over the offspring of his own intellect and industry, according as, however, it has been determined by individual civil laws.
The offspring of intellect are: books published by an author, images, musical rhythm, medicinal remedies newly invented, and other artifacts made by an artisan. All indeed teach that it is pure and putrid theft if someone secretly takes away from another manuscripts or artifacts or inventions not yet made matters of public right, because the legitimate owner is reasonably unwilling on account of grave damage and grave injury brought against him. But when a manuscript has already been printed, or if an invention (commonly, Patent) has already been divulged, theologians dispute whether a new printing of the book made without the author's permission or imitation of the invention is against natural right and obliges to restitution. Some deny this, because a work once published already becomes a common good, which can licitly be occupied by all;43 but the more common and truer opinion affirms it, yet with the restrictions indicated by positive law. And indeed it seems to be a great injury that he who perhaps with hard labors wrote a book, or invented something new, should be frustrated of the fruits of his labors because another publishes the book again or makes an imitation of the invention. Nevertheless, from another side, it would be very harmful to the common good if the publication and imitation of such works remained reserved forever. Wherefore it is necessary that positive laws indeed protect the rights of the author, but also limit them; and thus in fact it has been done among all cultivated nations. Indeed, concerning this matter there exist international pacts among several nations. Already in the year 1886 at Bern in Switzerland such a pact was entered into among some nations, and it was augmented at Paris in the year 1896. But afterward certain nations entered into still special pacts.44
Things To Be Noted For Practice. Since natural right does not have special determinations concerning the dominion of authors, and since the determinations of diverse civil laws seem sufficiently just and constitute true rights, they also oblige in conscience, and transgressions induce not only sin but also the obligation of restitution, if the true owner has suffered grave and certain damage. Thus is the opinion today more common. In practice the quantity of restitution can be determined with difficulty, because it is almost impossible to weigh the damage which the author has suffered. Lehmkuhl writes to the matter: "He is held to that restitution which the judge will have defined, if he is called into law. If the author is unwilling to pursue the matter in judgment, and nevertheless does not renounce restitution, that must be restored to the author and publisher in which, according to equitable estimation, they have suffered damage or have been defrauded of profit."45
It must be noted that sometimes restitution must be made not only to the inventor but also to buyers. For example, someone has produced a liquor similar to the very celebrated liquor commonly called "Chartreuse" and sells it as true "Chartreuse." In this case the damages brought must be repaired: 1. to the legitimate proprietors producing true "Chartreuse"; 2. to all those who bought false "Chartreuse" in error, since that false liquor has much less value than true liquor, and besides perhaps diminished the health of those drinking it. Since the buyers for the most part are unknown, something must be given in their place to the poor or to pious causes. But how much and how it must be restored can hardly be defined easily. The falsifier does not deserve great indulgence. If he has been detected, even by civil law itself he is most gravely punished and is held to pay the imposed penalty. But if he has not been caught by the civil judge, nevertheless there falls upon him the moral obligation of repairing the damages. Perhaps restitution can then be made in this way: after deducting the expenses which the adulterator made in the fabrication of the thing, let him divide the whole profit into two parts, of which let him expend one upon pious causes, but restore the other to the legitimate proprietor producing it. Thus, saving a better opinion and with circumstances altogether particular, sometimes occurring, set aside.
Often the permission of the author can be presumed for publishing small articles published by him or for transcribing music for private use; the same is valid concerning translations into another language, provided nevertheless that it is a matter of lesser moment. For thus common usage bears. But many authors in these cases require that it be indicated by the translator or new publisher whence he took the written article. But if it is a matter of translations of greater moment, for example of an entire book, then the permission of the author or publisher cannot be presumed, and therefore such an illegitimate translator must be treated in the confessional almost as was said above concerning an illegitimate publisher.
43 Thus especially Bucceroni, Theol. mor. I, n. 878; somewhat also Morres, De iust. I, n. 24; Vermeersch, De iust. n. 246 sqq.
44 Cf. Herders Konversations-Lex., s. v. "Urheberrecht."
45 Casus consc. I, n. 580.
9. Scholion. On The Dominion Of Authors According To Some Modern Civil Laws. The dominion of authors is protected by Spanish civil law during the life of the author and after his death for 80 years;46 by French civil law during the life of the author and after his death still for 50 years; by German, Austrian, and Swiss law during the life of the author and then for 30 years; by British law for 42 years after the first appearance of the work; by the law of North America for 28 years from the day on which the book was sent to the "Librarian of Congress, Washington"; the duration of 28 years can be prolonged for another 14 years.
Concerning the laws of diverse regions about the right of a new invention (commonly Patentrecht, Patent right, droit sur les brevets d'invention), since those laws are not easy either for understanding or in practical application, there is no leisure to speak here. If a case occurs in the confessional, the confessor should first consult an upright man who is skilled in this matter (commonly Patentanwalt); for it is morally impossible that the confessor be able to render a right judgment in so arduous a matter without the previous counsel of someone skilled in civil law.
46 Cf. Larraga-Sarollegui, Comentarios al P. Larraga n. 703; Cod. civ. a. 428 sq.
10. Principle 4. To man there belongs strict dominion over external goods legitimately possessed.
This is clear from what was said above, n. 4, concerning the licitness of such private dominion and concerning the absurdity of Communism.
11. Principle 5. Man does not have full dominion over another man, but he can have useful dominion.
The reason is that each man has received from the Creator some inalienable rights. Hence no private man can dispose of the bodily or spiritual life of his neighbor. For as to this all men are equal. Whence it is a most grave injustice if someone by his own authority kills another, unless nevertheless he acts from legitimate defense or with the moderation of inculpable self-protection, as will be explained below concerning an unjust aggressor. A legitimate judge can inflict the penalty of death as bearing the place of God, as will be said below, n. 118.
Useful dominion over the faculties and works of a neighbor can belong to some man, because this follows necessarily from the inequality of the states of diverse men. This diversity indeed has been instituted by God himself, since he willed some to be masters and others to be servants. Wherefore all theologians teach that, pagan slavery being rejected, by which a slave was regarded altogether as a material thing or a brute animal, even slavery properly so called, by which someone is held through his whole life to serve another in all licit things, is prohibited neither by natural right nor by positive-divine right. Hence we see slavery existing not only among barbarous nations, but also among the Jews.47 Slavery is manifestly presupposed as something in itself licit also in the New Testament. For the Apostles command that slaves be subject "in all fear to masters, not only to the good, but also to the harsh";48 they exhort masters to treat slaves kindly;49 they sometimes advise them, but do not command them, to free them.50 Nevertheless, history bearing witness, slavery has almost always involved many abuses; and therefore both civil and ecclesiastical law gravely prohibit slavery properly so called in our days.51
47 Cf. Ex. c. 21; Lev. c. 25; Deut. c. 20-21.
48 1 Pet. 2:18; similar things are found in Col. 3:22; Eph. 6:5.
50 Almost the whole Epistle to Philemon.
51 Cf. Gregory XVI, Const. In supremo apostolatus, 3 Dec. 1839, and Leo XIII, Encycl. In plurimis, 5 May 1888.
12. Scholion. On The Various Kinds Of Goods. After what has been said concerning the object of dominion, it is useful to add small explanations concerning the various kinds of goods which fall under dominion. For diverse civil codes distinguish very carefully among diverse kinds of goods. They are:
Movable and immovable goods. Movable goods52 are those which can easily be transferred from place to place. Immovable goods are those which either cannot be transferred, or are considered to be inseparably joined with an immovable thing. In individual codes it is usually determined which goods are considered immovable and which are not. Both in German law and in French law there are considered immovable goods, besides houses and fields and other things which adhere to the soil, also: a) crops and other fruits, as long as they are joined with the soil, but not after they have been separated from the soil by harvest; b) rights which are joined with some immovable good, for example the right of patronage, active servitudes, etc.; c) machines necessary in some workshop; animals necessary for carrying out agriculture, etc.53
Fungible and non-fungible goods.54 Fungible things are movable goods which can function in place of others; moreover, they are those things which in commerce are customarily numbered, weighed, or measured, and are consumed by the first use, for example money (which among all fungible things, according to modern practice, obtains the first place), oil, grain. For if someone has lent me, for example, 100 francs, I am not held to return altogether the same little coins of gold or silver, but in place of the coins loaned, any other coins of the same value can function. But non-fungible things are those which cannot be substituted by others, but, if they have been loaned or taken away, must be returned altogether identically; for example, if someone has loaned this horse, it does not suffice to return another horse, but altogether the same horse must be returned.
Consumable and non-consumable goods.55 Consumable goods are considered to be those things which, as such, are consumed by the first use, for example food, drink, money, etc. But I say: which as such are consumed by the first use; for it is not required that they be altogether destroyed or receive another nature. Thus, for example, the cloth from which a garment has been made indeed remains, but it has now been made clothing and ceases to be cloth. Therefore it is considered a thing consumable by the first use. But non-consumable goods are things which are by no means consumed by the first use, but remain in their first state, for example a garment, a house, books, etc.
These divisions must be committed to memory, because otherwise several expressions of civil codes can be understood only with difficulty.
52 Fahrnis, fahrende Habe.
53 Cf. Cod. Civ. Germ. §§ 93-98, where these things are called: Wesentliche Bestandteile einer Sache und Zubehör.
54 Vertretbare und nicht vertretbare Sachen (cf. Cod. civ. Germ. § 91).
55 Verbrauchbare und nicht verbrauchbare Sachen (ibid. § 92).