Chapter I. Nature of Justice and Right

THE word “ justice” is used in a variety of senses, but here it is used in its strict meaning to designate the moral virtue which inclines its possessor to give to everyone his due or his right.

The habit of giving to everyone his due from principle because it is right and proper is obviously a virtue, and it is 5 a moral, not a theological, virtue, for its immediate motive is not God, but the natural honesty and uprightness of so acting. Justice is a moral virtue which resides in and perfects the will, not the intellect, like prudence; it inclines the will to wish and to execute what is right. Justice inclines the just man to give his due to everyone irrespective of who he may be. It does not consider the relation in which that other stands to God, or to one’s self, as charity does; nor precisely what it is becoming in the just man to do, so that his actions may be worthy of himself, as does temperance, for example; it only considers what is owing to another, what is his due; and because it is the right thing that everyone should have his own, justice inclines to give it to him.

What is due to another in justice and is therefore his strict right must be distinguished from what a man has a claim to on some other ground. A poor man who cannot support himself has a claim on our help, but out of charity, not out of justice. He is our brother; he is a child of our common Father in heaven; he is destined to be a fellow-citizen with us for ever in the kingdom of heaven; the bond of mutual love which binds all such in one body, and makes them one big family, requires that all who can, should, out of their abundance, assist those who are in want. But this does not cause the abundance of one to belong to a needy neighbour in justice; it only prescribes that as much as is required to succour him in his necessity should be given him out of charity. A sufferer who is in pain has a claim on my sympathy and pity, not that it would be unjust to deny him my sympathy, but because pity and compassion require it of me. But when ten pounds are due to another in justice, those ten pounds belong to him; they are his property; he has a right exclusive of all others to all the benefit that can be derived from them, because they are his. Because they are his he can dispose of them as he pleases; he can put them in the bank, or spend them, or give them away; he would wrong no one even if he threw them into the sea, Anyone who steals them, or to whom he lends them, must, if he would be just, restore them to the owner, because justice requires that all should have their own.

We may divide the species of justice into individual or commutative and social justice.

Commutative justice regards the relations between man and man in their private and individual capacity. It supposes a perfect distinction of rights between them, and prescribes that these should be duly observed and respected. It exists between physical and moral persons alike, or between a physical and a moral person, provided that their rights are perfectly distinct from each other.

Social justice regulates the mutual relations between the individual and the society or State to which he belongs. As a member of society the individual has certain duties toward it; he must contribute his share to the common burdens; he must be ready to defend the common weal at the call of authority; he must obey just and equitable laws. This duty of rendering to the State what is its due is called legal justice. On the other hand, the State has its obligations toward its subjects; it must distribute burdens, honours, and rewards equitably without showing favour to particular classes and persons; not indeed with absolute arithmetical equality all round, but according to respective merits. The virtue which should regulate the distribution of burdens and rewards among its subjects by the State is called distributive justice. To such as have committed crime and injured the common weal the State metes out condign punishment according as vindictive justice demands.

There is a difference of opinion among Catholic writers as to whether legal, distributive, and vindictive justice, which we have grouped together under the name of social justice, are really subordinate species of the virtue, or whether commutative justice is the only species that may in strictness be so called. Whatever view be taken we must allow that in commutative justice alone is there a perfect distinction between debtor and creditor; it alone observes arithmetical equality in satisfying its obligations; it alone binds to restitution after being violated. In social justice, on the contrary, there is no perfect distinction between the State and its subjects; social justice does not prescribe the observance of arithmetical equality, nor does its violation bind to restitution, except when by the same act commutative justice has also been infringed.

That which in justice is due to me is my right, as it is called. I have a right to my life, to my good name, to my property; and anyone who deprives me of these rights is guilty of injustice. Rights, then, are the subject-matter of justice, and in this, its strict sense, a right may be defined as a moral power of having, doing, or exacting something.

It is said to be a moral power to distinguish it from the mere physical capacity of brute force, which confers no rights of itself. It is a moral power which may not without injustice be interfered with. It is the power of having and possessing as one’s own something which man values and which serves his convenience and wants; or of doing something, of giving scope to his bodily or mental activity; or of exacting some service as due to him from another.

A right is in re or ad rem. A right in re is a right which one has to something determined and already his own. In order that one may have a right in re the object must already exist; it must not be merely possible or future; it must be determined and separate; it must belong to the person by a title of justice so that it is his. If one of these conditions is wanting but notwithstanding someone has a claim in justice that something should become his property, he has a right ad rem to it. Thus a farmer has a right in re to his harvest after he has gathered it; before it has grown he has only a right ad rem. 'The right of a servant to his wages is ad rem until they are paid; after they are paid his right is in re.

A right in re seems to be practically equivalent to ownership (dominium). Ownership is absolute or qualified. Absolute ownership is the unlimited power of disposing of a thing for one’s own benefit. The absolute owner of a horse may use him, sell him, give him away, or kill him, without violating justice; he may do what he likes with his own. If ownership is limited in some way so that the owner has not a right to all the uses to which the object may be put, the ownership is qualified. Qualified ownership of the thing while its use belongs to someone else is called direct; qualified ownership of the use of what belongs to someone else is called indirect ownership.

According to English law, a subject is incapable of absolute ownership of realty; he is only capable of a qualified ownership therein, although to all intents and purposes an estate in fee simple is equivalent to absolute ownership. A qualified property of many different kinds may be had in realty, and both an absolute and qualified property of many different sorts may be had in movables. The various kinds of property, especially in immovables, are recognized and determined by law, which enforces the rights and obligations annexed thereto. In different systems of law there will be different kinds of property recognized. It will be sufficient for our purpose merely to mention ususfructus, usus, habitatio, servitus, of the Roman and canon law.

In. English law the quantity of interest which a man has in lands and tenements is called an estate, of which there is a great variety: equitable and legal estates; estates of inheritance and not of inheritance; estates of freehold interest and less than freehold, such as estates for years, estates at will, and estates at sufferance.