Prolegomena: On Justice and Right

1. Among the moral virtues Justice stands out, by which there is rendered to each one his own right; for the other moral virtues directly and immediately perfect only the subject, while justice orders man to another, and therefore promotes the good not only of the subject himself, but also of others.¹

¹ In explaining the virtue of justice, we shall by that very fact declare how far the fifth, seventh, eighth, and tenth precepts of the Decalogue extend, which forbid the rights of others to be injured with respect to bodily life, external goods, and truth: "You shall not kill. - You shall not steal. - You shall not speak false testimony against your neighbor. - You shall not covet your neighbor's house" (Exod. XX, 13-17).

2. Justice is one of the cardinal virtues, which are so called because they are, as it were, the hinges around which the other moral virtues turn. Of the others we have already spoken in the Treatise on the Virtues; but justice is treated in a special Treatise; for since it embraces manifold rights and duties by which men are bound to one another, both the breadth of the object and the difficulties with which this matter abounds demand a fuller exposition. For the rights and duties of each man cannot easily be defined and measured, especially since they not rarely seem to be in conflict with one another, and, moreover, in our days the relations among the members of the human family have become more frequent and more intricate.

At the very threshold of the Treatise it must be accurately explained what justice is, and consequently what right is, about which justice is concerned.

3. 1. The multiple meaning of justice. Among sacred authors² the word justice obtains a multiple signification: (a) often it designates the whole complex of all the virtues: "Blessed are they who hunger and thirst after justice";³ hence St. Joseph is called "just,"⁴ because, namely, he was endowed with all virtues; (b) sometimes it also signifies any act of virtue: "Take heed that you do not your justice (i.e., good works) before men";⁵ or the habit of virtue: "Unless your justice abound more than that of the scribes and Pharisees, you shall not enter into the kingdom of heaven";⁶ (c) since, moreover, the Christian virtues are infused in justification itself, justice is also taken for justification: "Abraham believed God, and it was reputed to him unto justice";⁷ (d) finally, it signifies the special virtue of justice, by which to another his own right is rendered: "He has appointed a day wherein he will judge the world in equity,"⁸ dikaiosyne, which is the Greek word for justice. Therefore, whenever that word is found in Scripture, the sense must be defined from the context.

¹ St. Thomas, 2. 2., q. 58; Lugo, disp. I; Soto, lib. III, q. 2; Lessius, lib. II, cap. 1; Carriere, n. 2-7; Pottier, diss. II; Vermeersch, n. 12-76.

² In Hebrew justice is expressed by a double word: yoscher, which sounds the same as rectitude, which avoids crooked ways; and tsedaqah, which designates firmness, inasmuch as justice is a norm in no way flexible according to which human actions ought to be performed. - In Greek dikaiosyne arises from the root dike, by which custom, or the accustomed manner of acting, is signified, because among the Greeks that which was customarily done was held as just. - In Latin justitia is derived from the word jus, which, according to many, arises from the word jussum; but much more probably jus is a root akin to the Sanskrit word jaus, which signifies something religious and sacred, because right is something sacred. Cf. Breal and Bailly, Dictionnaire etymologique latin, Paris, 1898, p. 144.

³ Matt. V, 6.

⁴ Matt. I, 19.

⁵ Matt. VI, 1.

⁶ Matt. V, 20.

⁷ Rom., IV, 3; and so throughout the whole Epistle to the Romans.

⁸ Acts, XVII, 31. - We have found no place in the Vulgate where the word justice certainly designates the virtue by which to each one his own is rendered.

4. 2. The genuine definition of justice. (A) Inasmuch as it is a special virtue, justice is usually defined: the cardinal moral virtue inclining the will to render to another his own right according to equality.

5. It is called: (a) a moral virtue, that it may be distinguished from the theological virtues, whose material object¹ is God Himself, and whose formal object or motive is one of the divine attributes; that is to say, the object of justice is not God, but something created, namely, the right to be rendered to another; but the motive is not one of the divine attributes, but that special uprightness situated in this, that we revere the right of others. - It is also called cardinal, because among the moral virtues it holds a principal place, and is one of those four virtues to which the others are referred.

¹ The material object is that about which the virtue is concerned; the formal object or motive is that which moves the power to act according to this virtue. - Concerning the cardinal virtues, cf. On the Virtues in General, n. 587-590.

This virtue, considered in itself, can be natural, since many precepts of justice can be known by reason and fulfilled by the will, with the assistance of the divine concurrence alone as natural; but in fact, since we have been raised to the supernatural state, it must be supernatural in us, namely inasmuch as we must use at once the light of faith and of reason to know rights and duties, and be helped by actual grace and impelled by a supernatural motive to exercise acts of justice.

6. (b) Inclining the will: by these words is signified the faculty of the soul in which justice resides; for the intellectual moral virtues, such as prudence, are in the intellect, while justice is situated in the will and immediately perfects it.

7. (c) To render to another his own right: for the proper object of this virtue is to render to each one his own right, i.e., that which is strictly owed to him, not however from mere fittingness or charity. Hence justice is a virtue toward another; for no one, properly speaking, has rights toward himself, but rights and duties are so coordinated that to the right which inheres in some man there corresponds a duty in another. - Under this aspect it is distinguished from temperance and fortitude, which are cardinal virtues, but regard the subject himself, not other men. - Justice inclines us to render to each one his own right; for he cannot be called just who inflicts injustice even on one person; and constantly, or perpetually; for it does not suffice that someone wish to observe justice for an hour or a day, or only in some business, but it is required that he wish to cultivate it always and in all things.

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(d) According to equality, so that as much is rendered as is owed; e.g., if you owe one hundred coins, you must render one hundred, neither more nor less: if less is rendered, justice is not preserved, since something owed remains; if more, the excess belongs not to justice, but to charity or liberality.¹

¹ Hence justice properly so called especially includes two things: alterity or distinction of persons, since it is a virtue toward another, and the rendering of what is owed according to equality. - Concerning the virtues annexed to justice, the reader will find a few things below, p. 438.

8. Corollary. From this definition the distinction between justice and the other cardinal virtues already appears; for prudence resides in the intellect, and in any business dictates what is fitting according to right reason; fortitude moderates, rules, and strengthens the irascible appetite according to the prescriptions of reason; temperance restrains and moderates the concupiscible appetite with respect to the pleasures of taste and touch. Prudence indeed orders man both to himself and to another, but temperance and fortitude only to himself. Therefore those virtues differ from justice, which is situated in the will, and inclines it to render to another his own.

9. Justice likewise differs from charity. Each indeed is a virtue toward another: but charity regards other men as brothers, who share the same human nature and the same supernatural life, pursue the same end by the same means, and are members of the same mystical body; and therefore it rests upon the intimate union of all men; - while justice rests upon the distinction of one man from another, inasmuch as each man, although a member of the human family, is truly distinguished from the other men, has rights proper to himself, and can vindicate them. - Charity is indeed in itself more excellent than justice, since it is a theological virtue; and also more universal, inasmuch as it extends itself to many more things than justice. But when the duties of charity and justice concur, these latter generally ought to precede the former, since they are stricter.

3. Species of justice. Since various divisions are proposed by various authors,² we select this one, which seems to us more comprehensive and more logical. Justice, inasmuch as it flourishes among private men, is called particular; as it is between society and its members, or conversely, it can be called social; insofar as it presides over relations among various Nations, it is called international.

² Commonly the older Theologians acknowledge a threefold justice: commutative, by which a private person renders to a private person what is owed to him; distributive, by which the Government distributes favors and burdens among citizens with equitable proportion preserved; general, or legal, which inclines citizens to render to the Republic or State what is owed to it.

10. (A) Particular justice is that by which a private person renders to a private person what is owed to him from strict right; therefore it primarily regards the particular good; it is also called commutative, because it is concerned chiefly with exchanges and various contracts. To this, according to all, certainly belong the conditions enumerated above in the definition of justice.

11. (B) Social justice, as it is here understood, is that by which citizens are ordered to society and society is ordered to citizens, for promoting the common good. It can be threefold: legal, distributive, and vindicative. (a) Legal justice is that which inclines individual citizens to render to society what is owed to it for procuring the common good. This virtue must be found both in the prince or president and in subjects: it inclines the former to command those things which contribute to the common good; the latter to carry them out, e.g., to pay taxes, to perform military service. It is called legal, because it is situated chiefly in establishing and observing laws; also general, insofar as it orders to the common good all acts which it commands.

12. (b) Distributive justice inclines the rulers of society to distribute common goods and burdens among citizens according to the common good and therefore according to the talents, capacities, and merits of individuals. In this matter arithmetical equality cannot be observed, but only a certain proportion, inasmuch as subsidies ought to be proportioned to needs, burdens to capacities, offices to talents, and rewards to merits; otherwise there will be respect of persons, by force of which, in the distribution of goods, attention is not given to that quality of the person which makes him worthy, but to something else, for example, consanguinity, gifts, friendship, and other things of this kind.

(c) Vindicative justice is that which moves superiors to inflict due and fitting punishments upon guilty subjects. This indeed is most closely allied to distributive justice, but nevertheless seems to be distinguished from it in this, that it immediately regards the reparation of the injured order.¹

¹ According to some, it is referred to distributive justice, because it inflicts punishments proportioned to offenses; according to others, to legal justice, inasmuch as the common good requires that superiors punish crimes; according to some, to commutative justice, because superiors are bound from a quasi-contract to punish the guilty.

13. It is controverted whether social justice is a species of justice properly so called, or a special virtue analogous indeed to commutative justice, but nevertheless truly distinct from it. (a) According to Lugo and not a few others, commutative justice alone attains the perfect notion of justice, because it alone is perfectly toward another, inasmuch as it exists between terms equal and independent of one another; - it alone preserves perfect arithmetical equality; - it alone obliges to restitution when it has been violated; but social justice, since it exists between society and its members, regards terms not wholly distinct nor independent; - it preserves only proportionate equality; - nor does it bind to restitution, except when commutative justice is at the same time injured.¹ (b) Yet not a few² contend that these differences are accidental rather than essential, and therefore that legal and distributive justice truly share in the notion of justice, and are, as it were, the lowest species of this virtue. - The former opinion seems to us more probable.

¹ Lugo, disp. I, n. 47-54; Crotty, n. 36-85; Cathrein, Philosophia Moralis, n. 142; Pottier, diss. II, n. 11-31. - The mind of St. Thomas seems doubtful; for in the body of the article (2. 2., q. 61, a. 1) he indeed teaches that there are two species of justice, distributive and commutative; but in the reply to 5 he adds: "Distributive and commutative justice are distinguished not only according to one and many, but according to the diverse nature of the debt"; these words seem to signify an essential difference.

² Thus Vermeersch, n. 21-25.

14. (C) International justice is that which exists among diverse Nations, and moves them to render to other nations, or to private citizens of other nations, what is owed to them; it therefore embraces the Law of Nations, namely the rules to be observed by various Nations in time of peace or war, the agreements entered into for fostering commerce among different peoples, for defining the rights and duties of citizens who dwell among foreign nations, for determining what is permitted or prohibited in time of war, etc. For Nations can be regarded as moral persons, among whom justice of the true name can intervene, so that even sometimes there may be place for restitution.

In this Treatise there is question especially of commutative justice; nevertheless we shall briefly touch in the course of the Treatise the principal questions which regard social justice; likewise we shall say a few things concerning international justice, where we speak of war.

15. Corollary. From this it is rightly inferred how necessary the virtue of justice is; for if it is observed both by citizens and by States, the rights of private persons and of Nations remain safe and sound, and therefore order and tranquility reign everywhere; but when the rights of citizens or of Nations have been violated, lawsuits, dissensions, and wars soon arise, most hostile to right order and peace,¹ as will appear more clearly from the things to be said below.

¹ Bossuet, Sermon sur la Justice, ed. Lebarq, Paris, 1892, t. V, p. 157-190; Card. Perraud, Les Vertus Morales, Paris, 1903, p. 35-90.

Since the object of justice is right, we must explain its nature and species, so that the very notion of justice may be better understood.

² St. Thomas, 2. 2., q. 57; Lugo, disp. II, n. 1-9; Soto, l. III, q. I; Lessius, l. II; Carriere, n. 8-19; Crotty, n. 123-176; Pottier, disp. I; Vermeersch, n. 4-11; Marres, t. I, Preliminary Notes.

16. 1. The multiple acceptation of the word right. By this name is signified: (a) that which is just, or is owed to someone; thus it is said: to render to someone his own right, to violate the right of someone;

(b) the rule by which the right to be rendered to someone is determined; in this sense right is divided into natural, divine, canonical, written or non-written; hence, by extension, the whole complex of laws, e.g., the science of law, the Corpus juris, etc.;

(c) the sentence of a judge, by which right is authentically rendered to someone, e.g., to pronounce judgment; and consequently the place in which right is pronounced;³

³ Thus Cicero, lib. I, De Oratore, says: "To fly about in the forum, to remain in the court."

(d) the moral faculty of having, doing, or exacting something, e.g., the right of property, the right of preserving one's reputation, etc. Concerning right, understood in this last sense, we are chiefly treating; for this is the primary and chief notion of right: for nothing is owed to another unless that other has a right, or legitimate faculty, of obtaining or possessing something.

17. 2. The true notion of right.⁴ Right, inasmuch as it is a moral power, can scarcely be defined, because it is one of those notions which seem clearer than the definition itself; nevertheless it can be described: a moral and inviolable faculty of having, doing, or exacting something. - It is called:

⁴ That false notions of right are handed down by many philosophers, both ancient and modern, is clear from those things which we said in the Treatise on the Last End, where we treated of the norm of morality, n. 21-64; for those who are unwilling to place the norm of morality in the wisdom and will of God say that right is nothing else than force, - or private or social utility, - or human liberty itself, which can perform whatever does not harm others. Cf. Fouillee, L'idee moderne du droit, Paris, Hachette, 1904.

(a) a moral faculty; therefore it is not a mere fact (in French, le fait), without any relation to the rule of morals; nor a merely physical power, which is sometimes opposed to right; for here there is no question of physical power (in French, force), by which obstacles of material forces are overcome or an operation is validly accomplished; but of a moral, or legitimate, power, which is according to nature and laws, and can be licitly exercised, according to the dictate of right conscience;

(b) and inviolable, i.e., which cannot licitly be prevented by others; for right in one person carries with it an obligation in others not to impede the exercise of this right; and which therefore subsists, even if its exercise is prevented by force;

(c) of having, doing, or exacting something; by these words the object of right is declared, which can especially be threefold: the power of having external things as one's own; the power of doing something, by exercising one's own faculties; the power of exacting something, that is, of obtaining from others either that they furnish something useful to us, or that they abstain from those things which would be harmful.¹

¹ Concerning the notion of right and duty and the comparison between the two, see P. Janet, La Morale, 5th ed., Paris, 1898, p. 266-281.

18. 3. The divisions of right. Passing over the right of jurisdiction, which belongs to the prince for ruling subjects unto the good of the subjects, we are treating only of right which is for one's own advantage.

(A) Right is commonly divided into strict and non-strict:

(a) Strict, or perfect, right is that which is determined in itself and with respect to persons, and can be exacted by way of coercion, for one's own advantage. Suppose, for example, that one hundred coins are owed to me by Peter, by force of a contract of sale: I have a strict right of exacting from a determinate person, namely Peter, a determinate thing, namely one hundred coins, by legal coercion,² that is, by recourse to the tribunals. To this strict right there corresponds in others a strict obligation, or an obligation of justice. This is right properly so called, about which the virtue of justice is concerned.

² Coercion can be diverse according to diverse circumstances: where no public authority exists, or in a case of necessity, when recourse cannot be had to magistrates, private persons can use force to vindicate their rights, as will be explained below; but in the social state, and outside the case of necessity, it is permitted to use only legal coercion.

19. (b) Non-strict, or broad and imperfect, right is that which is not sufficiently determined with respect to the thing or the person, so that it cannot be exacted by way of coercion; such is the right to alms, with which the poor who are living in common necessity are endowed: for although the rich in a general way ought to give something from their superfluous goods to the poor, they are not bound to give to this poor person, nor to bestow such a sum of money; therefore this poor person cannot exact this sum of money from this rich man. Hence such a right can be compared with strict right only analogically.

20. Lugo¹ declares in this way the reason why strict right is so determined that it can be exacted by way of coercion: this right is to be placed in a moral preference by which, in the use of such a thing, this man ought to be preferred to others; namely because, on account of the peculiar connection which the thing has with him, the whole of it ought to be referred and ordered to his utility; this ordering indeed is chiefly signified when something is called mine or yours; e.g., if a hunter has caught a wild animal, this has a special connection with him, so that the captor can say: this wild animal is mine, because I first occupied a thing belonging to no one.

¹ Lugo, disp. I, n. 5-6.

21. (B) But the strict right of property is subdivided into jus in re and jus ad rem. (a) Jus in re is that which someone has in a determinate thing already his own. For this three conditions are required:² that the thing actually exist; - that it be determined in the individual; - that it be bound to someone by a legitimate title, by force of which he can say: this thing is mine. He who has jus in re can vindicate it wherever it is, and by whomever it is detained; therefore to him belongs a real action, which directly touches the thing itself.

² Other conditions can indeed be required by positive law; but by natural law the aforesaid suffice.

22. (b) Jus ad rem is that which someone has so that a thing may become his own. For this two things are required: that the thing be owed from a title of justice; - that the title, by force of which it is owed, not be such that the thing is actually attached to us for our own advantage; which occurs whenever one of the three conditions stated above is lacking.

The matter is made clear by an example: if someone has bought a horse and has paid its price, he has jus in re in it, so that he can vindicate it from whomever it is detained; but if Titius has promised Caius that he will sell one of the four horses which he has, Caius indeed has jus ad rem, inasmuch as he can exact from Titius that he sell the promised horse, but he cannot seize one of these four horses wherever he may find it.

23. (C) Again, jus in re, which is also called dominion,¹ is divided into full and semi-full: (a) the former can be defined as the exclusive right of enjoying and disposing of a thing as one's own, for one's own advantage. It is called exclusive, inasmuch as it involves the faculty of forbidding to others whatever could disturb the owner in the use or disposition of his thing; of enjoying, i.e., of using the thing itself and its fruits for one's own utility;² and of disposing, i.e., of destining it to all uses, of giving, selling, exchanging, etc.; of a thing as one's own, so that certain possessions which do not imply dominion may be excluded; thus a depositary detains a deposited thing, but not as his own.

¹ Certain persons by the name of dominion understand only full jus in re; but more commonly dominion and jus in re are taken in the same sense, and each is divided into full and semi-full.

² Some add, with those learned in Roman law, that dominion also implies the right of consuming or destroying (jus abutendi), that is, of destining a thing to a use which cannot be renewed, or of destroying it; which indeed, understood in this sense, is legitimate. But not a few today by the right of consuming or destroying also signify the faculty of dissipating useful goods; in which sense he who abuses his own thing indeed does not sin against justice, but injures charity, prudence, or other virtues.

In the definition itself we purposely do not add the words "for every use not prohibited by law or agreement," which are read in the French Civil Code (a. 544), and in certain authors; for, even if someone violates some law, he does not by that fact injure justice, nor is he bound to restitution; thus, for example, a minor selling certain things from his goods, without the legal forms, acts illegitimately, but not unjustly. Nevertheless all admit that the exercise of some right can be restricted by law; but this ought not to be included in the definition, since the same restriction is extended to all things.

24. (b) The latter, i.e., jus in re, or semi-full, or imperfect, dominion, is that which does not embrace both faculties of enjoying and disposing, but only one or the other, i.e., the faculty of enjoying only, or of disposing only. He who has the right of enjoying, without the right of disposing, is said to have indirect, or useful, dominion (la jouissance); he who is able only to dispose of a thing, but not to enjoy its fruits or advantages, has direct dominion, or bare ownership (nue propriete).

25. Corollary. The right of property, of which we have treated, differs from eminent dominion, which belongs to the prince for disposing of the things of citizens in certain cases, when the public good requires it. For such a power: (a) is not exercised for one's own good, but for the common good; (b) insofar as necessity demands it; (c) with equivalent compensation given, and without respect of persons; and therefore it is rightly referred to the power of ruling, which sometimes demands that the private good yield to the common good.

26. Division of the matter. Those things which regard the virtue of justice are set forth in a twofold part:

I. concerning Justice itself;

II. concerning Contracts.

For contracts are nothing else than one of the modes by which the right of dominion is acquired, and therefore they are referred to the first chapter concerning Justice, as will be explained below; but, since the questions concerning Contracts are manifold and intricate, it is necessary to treat of them in a special part.

27. In this first part, we shall treat:

I. Of the existence of the right of property, or dominion;

II. Of the violation or injury of right;

III. Of the reparation of injured right, or of restitution.

The reason is that in the first place it must be weighed whether and what rights exist; then, since these rights are often injured, it must be explained in how many ways they are violated; finally, since violated right must be repaired, last of all restitution must be discussed. We declare this more fully in the following table.