Article II. Formulation and Arguments of the Conclusion

There are three lowest species of justice properly so called: general or legal justice, and the two divisions of particular justice, commutative and distributive.

21. I. State of the Question. 1. WHAT THE CONCLUSION CONCERNS.

In the present proposition we inquire only about the species of justice, and we assert that there are three lowest species in number, or species which do not admit of further division.

We do not contend, however, that this division is immediate. Indeed, from the manner in which we have stated the thesis, it is sufficiently apparent that it is to be understood in such a way that justice is first divided into general and particular justice. The latter in turn, as a subalternate genus, contains two parts: commutative and distributive justice.

2. OPINIONS. We adhere to the opinion of St. Thomas. Today, however, not a few—for example, R. P. Cathrein, S.J.¹—attribute the rationale of justice properly so called only to commutative justice, which is sometimes called rigorous justice.

¹ Philosophia Moralis, no. 142.

There are also those who, following Schmalzgrueber, S.J.,² maintain that there is a fourth species, vindicatory justice. This, moreover, is described as the virtue which seeks punishments from the guilty out of love for right order.

² Ius Ecclesiasticum, Preliminary Dissertation, no. 11.

3. THE TERMS ARE EXPLAINED.

Justice properly so called, such as we proved it to be in the preceding chapter.

There are three lowest species, so that no fourth is to be added:

General or legal justice. Because of the importance of the matter and the sufficiently remarkable confusion which is discovered on this point among several otherwise excellent doctors, its rationale will be explained more distinctly below. For the moment, let the following suffice:

This justice is described as the virtue inclining the members of a community to render to their community what is owed to it as such.

Moreover, this virtue is called general, not because it lacks a proper essence, but because, as we shall see, it orders the acts or matter of the other virtues as the common good requires.

And because it belongs to law to order the acts of citizens toward the common good, it is also called legal justice. Through it the citizen accords with the law.

And the two divisions of particular justice. That justice is called particular which is terminated formally, not at the community, but at any individual person whatsoever who is numbered with the others.

Materially, it can be the community itself, as, for example, in a purchase which the State makes.

Commutative justice is so called because it has place chiefly in exchanges, such as buying and selling. It governs the order of person to person as simply distinguished from and independent of another; and it concerns those things which, by each one’s own right, are his own. Therefore it exists between private persons and is most commonly considered between them.

And distributive. This justice “distributes common advantages or burdens among the parts of the community” (C. de Lugo, disp. 1, no. 43).

22. II. Proof. There will not be a perfect demonstration unless we establish that the three parts which we assert exist as virtues distinct from one another, as lowest species, in which, nevertheless, the rationale of justice properly so called inheres, and that there is no fourth species.

We shall easily establish this, however, after those things which were related in the Introduction. For there we saw that right, or the just, is threefold in species, corresponding to the right of the community as such, to the right of a person as a part of the community, and to the right of a person simply so called. Hence thus:

Justice properly so called is the virtue which renders to each one his right.

Therefore. As many as are the species of rights to be rendered, or rationales of debt,³ so many distinct virtues are constituted as species of justice.

³ II–II, q. 61, art. 1, ad 5.

But. From those things which we disputed above, it is evident that right is threefold in species: that which is to be rendered by the members to the community; that which the community owes to the members; and that by which individual persons are bound one to another.

Therefore. There are three distinct virtues as species of justice properly so called.

These species, as is sufficiently evident from the notions handed down, are legal, distributive, and commutative justice.

Finally, those three virtues are lowest species. For there are no other persons besides individual persons and the community; nor can a fourth order be devised between persons taken simply as such. The same will, moreover, become more evident from the solutions to the difficulties.

III. Difficulties.

23. 1. LEGAL AND DISTRIBUTIVE JUSTICE ARE JUSTICE ONLY ANALOGICALLY.

For a) justice renders to each one his own. But both legal and distributive justice render from the own goods of the subject in which they inhere.

Reply. I distinguish. It renders the things which are his own: that is, those which belong to each one by his right, or which a person can exact by title of his personality, I concede; things which are his own as already made his property, I subdistinguish: the principal species, or commutative justice, I pass over; every species, I deny.

For that which strictly pertains to justice is to satisfy the right (faculty) of another. If the object of a right is something proper, that is, as they explain it, something already ordered toward the end of the one possessing the right, justice will render what is proper to him. But it was shown above in the Introduction that there are rights which are terminated at things other than one’s own property.

b) The debt to be rendered, or the equality to be preserved, is, in the very rationale of debt, specifically diverse in legal and distributive justice and in commutative justice. Therefore. (R. D. Pottier, diss. 2, nos. 21, 30.)

Reply. I distinguish the antecedent. Yet in such a way that the three rationales of debt agree in one generic rationale of a debt founded upon the title of another,⁴ and therefore of a perfect debt, I concede; in such a way that there is no common generic rationale, I deny.

⁴ As regards that rationale, cf. Molina, disp. 12, no. 2; de Lugo, no. 50.

It is not sufficient, in order to establish that those three justices differ in their whole genus, to show the formal disparity of their object. For some formal disparity is required for a specific difference itself. But three virtues can be of the same genus as soon as some positive rationale univocally common to them can be assigned in the object. We consider ourselves to have accomplished this in the Introduction. Cf. nos. 5, 7, 8.

Likewise, although equality is understood differently in one justice and in another and, as we shall presently see, is called arithmetical in commutative justice but geometrical in distributive justice, it nevertheless does not enter the essence of justice as arithmetical or as distributive, but insofar as it is a true equality between the performance of a duty and a right.⁵ This form of equality is found in the three parts of justice.

⁵ “By bringing it about that the fulfillment of the duty corresponds exactly to the right.” Taparelli, no. 347.

c) In legal and distributive justice, perfect otherness is lacking.

Reply. I deny the assertion. Cf. ch. 3, where this otherness will be explained.

24. CONCERNING THE OPINION OF ST. THOMAS. We defend our opinion concerning this division with greater assurance because it alone seems to us to agree with the mind of the Holy Doctor. We are indeed not unaware that Cardinal de Lugo⁶ already thought that the words of St. Thomas could be qualified and that those parts which the Angelic Doctor calls subjective could be taken more broadly. But the question is not one of explaining a single word which may perhaps have fallen from his lips; rather, St. Thomas constantly uses those expressions and manners of speaking which are improper unless you assent to our proposition. For: a) He defines justice properly so called before treating the three justices, so that he establishes that definition as though common to the three; b) speaking of general justice he says thus: “Justice, therefore, can be related to both (to another considered individually and to another in common) according to its proper rationale”;⁷ c) again, in II–II, q. 58, art. 7, from objection 2 and the reply to 3, it is evident that he considers general and particular justice as two species of justice and is treating justice simply so called; d) as regards distributive and commutative justice, he speaks even more manifestly. In this sentence from the proemium of q. 61: “Next we must consider the parts of justice; first, the subjective parts, which are the species of justice, namely, distributive and commutative ...; third, the quasi-potential parts,” an argument can be drawn three times over, both from the words employed and from the comparison with the quasi-potential parts. Next, in article 1 alone, he employs the expression species of justice six times; and, in the reply to 5, he draws the specific distinction from the diversity of the debt. Finally, article 2, ad 2, contains this: “The general form of justice is equality, in which distributive justice agrees with commutative justice.” And since afterward he establishes as potential parts of justice virtues in which either the rationale of equality or the rationale of debt is deficient, does he not indirectly confirm yet again that both rationales are applied, not deficiently but properly, to general justice and to the two species of particular justice? But enough of this.⁸

⁶ Diss. 1, no. 50.

⁷ II–II, q. 58, art. 5, corpus.

⁸ Recently, departing from his former opinion, R. P. Cathrein, both in the elegant study Die Cardinaltugend der Gerechtigkeit und ihr Verhältnis zur legalen Gerechtigkeit [The Cardinal Virtue of Justice and Its Relation to Legal Justice], which was published in the Innsbruck periodical Zeitschrift für katholische Theologie, vol. 25 (1901), p. 635 ff., and in the fourth edition of Philosophia Moralis, now judges that, according to the mind of St. Thomas, the answer must be given in such a way that you posit as the cardinal virtue of justice, not some more general justice of which legal and particular justice would in some manner be species, but the one particular justice composed of commutative and distributive justice. We defer a definite pronouncement concerning this conclusion for the present, especially since what is chiefly important to ascertain is whether there truly is or is not some common rationale that is predicated univocally of the three justices. As to what R. P. Noldin thought in the same periodical, cf. vol. 26 (1902), p. 534, in his kindly judgment concerning our work.

25. 2. THE DIVISION HANDED DOWN SUFFERS FROM A DEFECT. For:

a) A fourth species must be enumerated: vindicatory justice, which demands punishments from the guilty. (Schmalzgrueber, Preliminary Dissertation, no. 11.);

b) Indeed, a fifth: domestic justice, which inclines one to procure the good of the family, just as legal justice inclines one to the common good of the civil State.

Reply. I deny the assertion. And to the proof:

a) Vindicatory justice is either the same as commutative or legal justice, or it falls short of the rationale of justice properly so called.

For it is considered chiefly in the prince or judge who determines punishments. But while they do this, they merely perform parts of the office by which they are bound to procure the good of the commonwealth. This, however, is an obligation of commutative justice. Therefore St. Thomas⁹ reduces vindicatory justice to commutative justice.

⁹ II–II, q. 80, sole article, ad 1.

In a private man who seeks compensation for himself, either immediately or through the mediation of a forensic action, vindicatory justice pertains to justice only reductively. For this man fulfills no duty of justice, since it remains entirely within his power to renounce this compensation. Rather, it is a special virtue which must strive chiefly for this: that someone seek the punishment of the guilty person with a right end and not beyond what is fitting.¹⁰ But it is quite evident that otherness is too much lacking here for this virtue to be established as a species of justice.

¹⁰ II–II, q. 108.

Finally, the guilty person who makes satisfaction exercises commutative or legal justice, according as by restitution he repairs the commutative justice which was violated, or pays the penalties as commanded by law.

With respect to the guilty person, however, there is no place for justice except insofar as he is not commanded to undergo penalties beyond what he merits. For it would be sufficiently strange to speak of punishment as in some manner owed to the guilty person himself by reason of some right of his.¹¹ “For the offender has no right to punishment; rather, the judge has the right to impose it” (Most Illustrious D. Waffelaert, De Iustitia, vol. 2, no. 402).

¹¹ Therefore we cannot approve the manner of speaking of R. D. Pottier, diss. 2, nos. 51 and 54.

You will say: What if you punish from love of right order as such? (Cf. R. P. Lehmkuhl, Theologia Moralis, vol. I, no. 753.)

Reply. To punish from love of right order belongs not to man but to God alone. Cf. II–II, q. 66, art. 6, ad 2.

N.B. Concerning this improperly named justice, besides St. Thomas, II–II, qq. 80 and 108, cf. Molina, treat. 1, disp. 12, no. 13; and treat. 11, disp. 715, no. 6; Most Illustrious D. Waffelaert, vol. 1, no. 16 at the end; vol. 2, nos. 396, 402.

b) As regards domestic justice: Since a family consists of few persons and the bond of domestic life is comprised in few relations, its good is sufficiently procured by observing the particular orders by which the members of the family are connected with one another.

There is no need to introduce new obligations belonging to various virtues. Let the son obey his father as nature commands; let wife and husband furnish to one another those things to which they are bound by marriage; let master and servants each discharge his own office: and the order of domestic life will be perfect. But the rights of legal justice and the distinct virtue which fulfills this debt are founded upon the necessity of exacting in a perfect society many things which would not be required outside civil life. This will become more evident from what is to be said below. Cf. here St. Thomas, art. 7, ad 3; Most Illustrious D. Waffelaert, De Iustitia, vol. 2, no. 400; R. D. Pottier, diss. 3, no. 36.