Article II. Formulation and Arguments of the Conclusion

I. Although the distinction of a physical and a moral person may be conceded to received usage and the convenience of speech;

II. nevertheless, in reality, apart from physical persons, there is no subject of rights in any society of men;

III. but all the goods and rights of any group are the goods and rights of the members, to be possessed, however, not separately but in common.

534. State of the question. 1. DIVISION. Three parts of this conclusion are perceived. The first directly opposes no one; the second attacks all who regard a moral person as a peculiar subject of right; the third, after rejecting other explanations, adjudges the goods and rights of the group to the members themselves.

2. THE TERMS ARE EXPLAINED. Although ... to received usage and the convenience of speech. While we advance these causes, we deny the utility of this distinction for explaining juridical effects, and admit only that utility which is customarily found in preserving usage and in a suitable image. Therefore, we already enter indirectly into the controversy.

May be conceded. A concession is not full approval. We therefore signify a mind little inclined toward this distinction. Nor by this concession do we prefer the words moral person to another appellation.

The distinction of a physical and a moral person. A physical person is a rational being; a moral person is a group of persons or an institution which, by its own government or external appearance, seems to imitate a physical person. It can be described negatively as a nonphysical person.

Nevertheless, in reality, that is, if you turn your mind from a concept of the mind to those things which exist in the order of things, or from the subjective concept to the objective.

Apart from physical persons, that is, the members.

There is none in any society of men, so that we may also exclude the opinion of those who think that a moral person is truly constituted only in certain groups.

A peculiar subject of right. This is the head of the controversy.

But all the goods and rights of any group. Here you should distinguish especially the goods and rights of the group from the goods and rights which exist in the group. For it can happen that some rights or institutions exist on account of the common good which nevertheless are not possessed by the group. For, in things of a higher order, that does not hold which can be said of things that are so far beneath man that man perfectly dominates them: namely, that they are possessed by the same person to whose utility they are referred. For the rest, not even the defenders of the moral person assign to it all things which seem to pertain to the group on its account. This, therefore, is the general force of our proposition: whatever is predicated of the group is predicated, not of some new subject, but of the members.

To be possessed, however, not separately but in common. We therefore distinguish two genera of possession: singular or proper possession, and common possession; that is, there are two specifically diverse modes of having things, but not two genera of those who have them.

These two modes do not fall simultaneously upon the same things, as will be declared in the proof itself.

3. THE MATTER TO BE DISPUTED, lest we contend over a name, must be accurately defined here. We by no means deny that certain groups, more than others, take on from their government or circumstances such an appearance, on account of which the mind depicts to itself the group after the manner of one person distinct from the members; but we reject this: that a true subject of rights distinct from physical persons is ever constituted per se or by an efficacious fiction of law.

II. Proof.

535. A. OF THE FIRST PART. Concerning conceding the distinction of a moral and a physical person.

In order that we grant to usage and the convenience of speech the distinction of a moral and a physical person, it is sufficient that the image rendered by the words moral person be founded in reality, and that both usage and convenience of speech in fact commend this figure. But this is so. Therefore.

The minor is proved. Beyond doubt, certain groups—for example, the Church and the State—are seen to be furnished with a patrimony distinct from the members' own goods; they remain when the members have changed; and their utility, fortune, and so forth are discussed as though the utilities of the group and of private persons were plainly disparate, indeed not rarely contrary. Those who could in no way act on behalf of the private members act in the name of groups, and they do things which surpass private power. But if every gathered multitude already seems to our mind to compose one entity, much more, where these things occur, is the thought of a person distinct from the members themselves brought upon us. As we were already admonished in Roman law, these groups seem to sustain the function of a person.

No one will deny the most frequent use of the formula.

Finally, both clarity and brevity of speech are provided for if you use the one name moral person and refer to it rights and goods subject to a special government, rather than if you were to say “the members considered universally and formally,” and attribute to them things which do not belong to them when considered in another respect.

536. B. OF THE SECOND PART. Exclusion of a peculiar subject of rights.

To establish this principal part of our intention, we proceed thus to fortify the way.

The historical prejudice. 1. This must already have force as a very great prejudice: that neither in Roman law, although a proper title, On the Law of Persons (I, 3), is found in the work of the Institutes, nor in canon law, nor among jurisconsults before the nineteenth century, were persons ever divided into physical and moral.

2. But specifically against the doctrine which places within the discretion of the law the juridical personality of already existing groups, whereby they become capable of possessing, there is the fact that it rests upon a spurious interpretation of Roman law. For, in the title of the Digest, Whatever Belongs to Any Corporate Body,¹ the words “those who have been permitted to have a body” and other similar expressions were understood by von Savigny as though body stood for the juridical capacity which certain groups above others would acquire by the beneficence of the law. On account of the authority of this interpreter, this interpretation readily prevailed. But today it has been fully ascertained, and in Germany placed beyond controversy,² that by the name body the group itself is to be understood. For in the Roman State, no differently than formerly in France, besides groups which were freely permitted to be made among certain and not very numerous persons for temporary ends—for example, for the sake of trade—there were constituted colleges which lay open to all persons of a certain condition, place, and so forth. Since these could become dangerous to public security, unlike the former groups, they were prohibited from assembling without the authority of the prince. Hence persons to whom leave was given to compose a college were permitted “to have a body,” and consequently, “after the example of the commonwealth, to have common things, a common treasury, and a representative or syndic through whom, as in a commonwealth, that which ought to be transacted and done in common may be transacted and done.”³ Hence, to be able “to have a body” is the same as to be able to form a group.

¹ Law 4, title 3. Cf. especially law 1.

² It is not likewise so in Belgium and France. Cf., for example, the work of Van Wetter at the places cited.

³ The source prints this footnote marker but supplies no corresponding footnote text.

Moreover, it seems altogether incredible that the reality of the moral person, whose daily activity is spoken of, was unknown for so many centuries and, through the marvelous good fortune of an erring man, was finally discovered at last in the nineteenth century.

The argument. A new subject of rights is neither required by any necessity for explaining government or stability, nor can it be admitted philosophically. Therefore, it must be rejected.

1. The first part of the antecedent is proved.

In order to show that there is another subject of rights besides physical persons, they argue from the distinct possession and administration of patrimonies, from the group's own stability, from the rationale of the cooptation of members, and from the end to which the group is ordered.

But, apart from the fact that it scarcely appears how the rationale of cooptation and of the end could profit the intention of the adversaries, all these things can be explained without a new subject. Therefore. For:

a) Patrimonies are shown by the adversaries to be distinct because individual members are not bound even to pay proportionately those things which must be furnished by the group, nor to receive proportionately those things which are owed to the group; because the goods of the group are governed and lawsuits are instituted by one or a few without any participation of the members, indeed sometimes against the members; and so forth.

Come now: in the very society which men contract at their discretion, it can be agreed that certain goods are so assigned to a common end that, with anyone's private use excluded, they are handed over to be governed by one or a few constituted in a definite number and manner, with the added precaution that by their agreements the governors can bind only the common patrimony. A prohibition of positive law could perhaps obstruct this government, but by no means a defect of moral personality in the group, or the attribution of rights to the corporate body of the members. But if, in that genus of societies which is owed to nature or to a positive institution of God, similar government is altogether demanded on account of the multitude of members, nature or the positive will of God will be no less capable of efficaciously introducing that which can exist in any group by the formal consent of private persons.

b) The stability by which certain groups—for example, States—seem to survive when citizens die occurs not rarely in other institutions also. Thus the Holy See is thought to remain the same when the Pontiff has changed; thus even the court of a single judge—for example, of the present-day justice of the peace—is judged to be the same, although several persons, one after another, have discharged the magistracy. Nevertheless, no one will ascribe rights to some moral pontiff or judge. What of the fact that, even among material things, a house is not thought to perish although several parts now consist of other stones? Directly, however, stability of this kind is explained by the unceasing succession of some into the place and parts of those departing. And by mutual agreement itself, the members can stipulate that the group not be dissolved by the death or departure of anyone, but that the parts of those departing fall in reality to the others in common. We see this occur in groups which are called mutual-aid societies (secours mutuels).

But if a society rests upon the natural and common necessity of men, it will happen that this succession is more perpetual, but not that a subject distinct from all the members is constituted.

c) The cooptation of members into the State, they continue to argue, is made without selection, nor is a definite contribution brought by new members.

But who does not see that it is consonant with the nature of the State that most persons—not all—be coopted as citizens by birth itself within the territory? Then the very universality of the end and the multitude of members bring it about that the defined contribution demanded in commercial groups is not to be exacted. For there is no one per se who cannot be useful to the State. But the fact that some are coopted who per accidens will be useless will harm the State less than if, in so great a multitude, you wished to explore the ability of individuals. For the rest, those who are born weaker, so that they furnish no hope of useful work, customarily belong to useful families, which deservedly are to be assisted in protecting their infirm members. Add that the very exercise of humanity and charity is not foreign to the common good of the State, since citizens are perfected by this exercise. But all these things by no means prove that a subject of rights is to be distinguished from the members. And, again, in a mutual-aid society whose members are as many as work in a certain workshop, a similar cooptation of members already appears in some manner.

d) The end of the State and of the Church is not only the common good of those who actually belong to one or the other.

True; but unless they show that each is directed to the good of some moral subject which they distinguish from the members, by this consideration they say nothing that pertains to the matter. Moreover, the end of a thing often extends beyond the possessor of the thing. Thus fields which are cultivated now will also be useful to posterity; and the private possession of men is ordered to the common good of the State. To declare the matter directly now, the present common good is the good of the present members; but just as, by the unceasing accession and departure of members, it happens that the State and the Church are continued with a moral, not a physical, identity, so the common good is continued, morally but not physically the same. Finally, by the very union of blood and friendship or by the love of Christ, it is also easily explained why they are solicitous for the future fortune of the State and the Church, since they are accustomed to regard the good of posterity or the glory of Christ as their own good or their own glory.

2. The other part of the antecedent is proved: every rationale of this subject is philosophically repugnant. For:

This subject, which would be the moral person, is said either to be feigned by human law; or to subsist without a fiction of law, and this either as distinct in reality or as distinct only by reason from physical persons.

But nothing of this kind can be admitted philosophically. Therefore, it is to be rejected.

Not the former rationale of the subject. For: a) Concerning the commonwealth—after whose imitation the other colleges exist, as Roman law says—and concerning the Church, nothing of this kind can be devised, since the moral personality of the commonwealth is prior to human law, while the personality of the Church is withdrawn from the dominion of human law. b) Nor is it apparent how true rights can inhere in a fictitious person, since the foundation ought by its firmness at least to equal those things which rest upon it; or why the human legislator has need of this artifice for conceding rights which, as all acknowledge,⁴ were established for the utility of men, that is, of physical persons.

⁴ “Every law has been established for men.”

Not the other rationale. For if you posit a subject distinct in reality, you affirm that which escapes every thought. For by the fact that men are gathered, they are not intrinsically changed, nor do they enter as parts into some composite physically made one by a new form, nor are the wills of the members physically united. Hence such a subject can exist neither as an organic body nor after the likeness of a separated soul which manifests itself by unity of will.

But if you posit a subject distinct by reason,⁵ either you merely contend that the common goods and rights are possessed by the members not under every rationale but under a certain rationale, or that there must be considered in the members that respect under which they possess them; and then, since you acknowledge that there is no other subject, you concede our opinion in reality. Or, on account of this distinction, you judge that there is another subject; and then it occurs that a distinction of reason cannot found a division of persons. For a distinction of reason is between inadequate concepts of the same thing; but a person is a whole in which all things predicated of the thing inhere and to which they are attributed. Therefore, another person cannot be constituted by a distinction of reason.

⁵ By a reasoned distinction of reason, as is apparent. This has as its cause the perfection of the thing and the imperfection of the mind, by which we are compelled to penetrate and, as it were, exhaust the truth of one thing through several inadequate concepts.

N.B. If they wish to regard some entity of reason as the subject of rights, it stands in the way that true rights must be possessed by a true person, while an entity of reason, at least as regards the mode in which it is conceived, does not exist outside the intellect.

Add also that, when the adversaries argue from the diversity of essential qualities and from the preserved identity of a subject which remains one although several members have been changed, they advance reasons which either accomplish nothing or prove a real distinction.

For the rest, this opinion can already be excluded by the fact that the whole composite does not differ even by reason from the parts taken together and placed in order. Therefore: any group whose parts are the members does not differ even by reason from the members taken together and as such. Hence there is no ground upon which you may distinguish a subject of rights from the members taken together.

537. C. PROOF OF THE THIRD PART.

a) Concerning the true possessor of the rights and goods of a society.

It is readily established that all the goods and rights of a society are the rights and goods of the members: both because by the name society the members as such are in reality designated universally, so that you would say the same thing by the rights of the society and the rights of the members; and because the goods and rights of the society are in someone's dominion, while apart from the members there is no other subject capable of such dominion.

b) These rights and goods are to be possessed not separately but in common.

Among the utilities which pertain to persons joined by a social bond, some are proper to individuals, while others are constituted or shown to be common by the bond itself. But the goods and rights which are called those of the society are assigned to common utilities either by the members' consent itself or by the will of a donor or one legitimately commanding, so that, against the will of the other members or of him to whom this part of the right belongs,⁶ they cannot, while the society exists, have another honest use. Therefore, they are possessed not separately but in common. This obligation of justice does not prevent them from being truly those of the members, in whole or in part. For from the fact that a utility is said to be common, it follows that it also belongs to others, but not that it does not belong to me. Moreover, things will be those of the members wholly if they can at least dispose of the thing by common consent; otherwise, the dominion of the members is only imperfect. But outsiders are excluded from a thing which is common among the members as though it were possessed by one man. Therefore, with respect to outsiders, there is a true property of the multitude. By this exclusion of outsiders and assignment to the common utility, the marks of the possession which is called common are composed.

⁶ Concerning that diminished rationale of dominion, cf. scholion 8.

538. It is useful to confirm the conclusion by authorities.

Aristotle⁷ says that a State is a certain multitude of citizens which, so long as the same form of polity remains, can be called the same, although some citizens have died and others have been born, but with that genus of identity by which we call rivers and springs the same although they carry different water.

⁷ Politics, bk. 3, chap. 1, no. 1, and chap. 2, no. 3.

“The commonwealth,” says Cicero,⁸ “is the thing of the people; but a people is not every group of men gathered in any manner whatsoever, but a group of a multitude associated by consent in right and by a communion of utility.”

⁸ On the Commonwealth, bk. 1, chap. 25.

“What is the commonwealth except the thing of the people? Therefore, a common thing is certainly the thing of the State. But what is the State except a multitude of men brought into a certain bond of concord?” Thus St. Augustine, Epistle 138, no. 10.

We borrow these things from St. Thomas: “Justice orders a man in comparison with another.... In one way, toward another considered singularly; in another way, toward another in common, insofar, namely, as he who serves some community serves all the men who are contained under that community.”⁹ “Legal justice orders a man in those things which are toward another: immediately as regards the common good, but mediately as regards the good of one singular person.”¹⁰

⁹ II–II, q. 58, art. 5, corpus.

¹⁰ II–II, q. 58, art. 7, ad 1.

Molina speaks in this manner: “Since a commonwealth is nothing other than the collection of all its parts, certainly its goods are those of the parts, possessed by them, however, in common.”¹¹

¹¹ On Justice and Right, treat. 1, disp. 12, no. 3.

Finally, C. de Lugo declares universally: “A community is not distinguished from its members, as is established.”¹²

¹² On Justice, disp. 1, no. 68.

The Gloss of Roman law had spoken in the same manner: “A corporate body is nothing other than the men who are there.”¹³

¹³ On law 1, §1, Digest, XLVII, 22, under the word Competit.

These passages certainly do not refute in express words the position of the adversaries, which, because it was new, was rather unknown than attacked; but some more openly than others profess that there is no new supposit in a State or community, but refer all things to physical persons, who possess singular and common things only in another manner.

This meaning is excellently demonstrated by the explanation of the vow of religious poverty. Observe that colleges of religious are to be referred among true moral persons. Hence, if the classical interpreters of canon law had recognized in communities a subject other than the religious themselves, they would spontaneously have attributed the common goods to this subject. But, on the contrary, they attribute common possession to the same subject—that is, to the religious—from whom they withhold private goods. What is the persuasion of the religious themselves? They constantly speak of the things of the monastery as of their own. And those who wished to profess a greater poverty, the Friars Minor, assigned to the Holy See goods which otherwise would have been common. What need would there have been for this counsel if the goods of the community were already per se not truly those of the religious, but of some distinct moral person?

Moreover, let the Doctors be heard. “All religious can possess property in common, with the exception of the Friars Minor observing the rule to the letter”; thus Reiffenstuel, bk. 3, tit. 35, no. 3. And Schmalzgrueber, under the same title, no. 5: “In most religious institutes, although individual persons cannot possess dominion over any temporal thing, nevertheless dominion over temporal things is retained and obtained in common.” More recently, Fr. Piat:¹⁴ “Religious are capable of possessing in common and of having true dominion over movable and immovable things.”

¹⁴ Praelectiones iuris regularis, vol. 1, p. 219.

539. III. Difficulties.

1. A society is something other than a certain sum of men; a social good is something other than the sum of particular goods. Therefore, besides the members, there exists a subject of social goods, or a new person.

Reply. I distinguish the former part of the antecedent. A society is something other than a sum of any men whatsoever, I concede; it is something other than a sum of men intending a common end, I deny.

Just as the owner of a thing is not just anyone but a man who stands in a certain relation to the thing, so a society expresses a certain mutual relation of persons and those things which are demanded by such a relation—for example, authority. Yet it in no way follows from this that a new person is added to the owner or the society.

I also distinguish the other part. A social good is something other than the sum of particular goods, that is, of goods which are possessed separately by the members, I concede; that is, of goods which belong to the members, I pass over. For rather than a sum, the social good is among the goods of the members.

In order that the social good belong to the members, it is not required that it be the sum of the members' goods, but it is sufficient if the members have dominion over the social good. Otherwise, I could separate one of five goods possessed by Titius and argue thus: This good is not among the four possessed by Titius; therefore, it is not Titius's. If only goods which are possessed separately are considered, a common good certainly is not found among such goods; but it is not for that reason excluded from the goods of the members, since there is a twofold rationale of having goods.

I insist. But it is not among the goods of the members, since the members cannot freely dispose of the things, that is, they lack the right of disposing of them.

Reply. I deny the assertion, and I distinguish its rationale. The members individually lack the right of disposing, I concede; all together, or by common consent, I subdistinguish: per se, I deny; per accidens, because they belong to a moral person, I deny; for another cause, namely, on account of the burden with which the things are affected, I concede.

Per se, the members have a free faculty of disposing of the common thing, to be exercised, however, by common consent. But per accidens, it can happen that they have received certain goods from elsewhere with the burden of preserving them or of continuing the society. Then, indeed, it will not be lawful to dispose of these things—not because they are possessed by a moral person, but on account of the burden imposed upon the things. In a similar manner, even one person can possess a thing with the burden, for example, of preserving it and thereafter handing it on to another.

2. According to the testimony of St. Thomas,¹⁵ “the common good of the State and the singular good of one person differ not only according to much and little, but according to a formal difference.” And the passage is confirmed by the authority of the Philosopher. But: Unless there is held to be a subject distinct from the citizens, even collectively taken, these two rationales of good would not differ formally. Therefore.

¹⁵ II–II, q. 58, art. 7, ad 2.

Reply. I concede the major. I deny the minor. In order that the goods differ formally, it is sufficient that they be possessed under another genus of possession. Certainly, we too distinguish the common good of several persons and the singular good of many persons.

3. The essential qualities of a society as such and of the members collectively taken are different. Therefore, a society as such denotes a subject other than the members even collectively taken.

Reply. I distinguish. The specific rationale of society and the members collectively taken differ in essential qualities, whether logical or real, I subdistinguish: in logical qualities, I concede; in real qualities, I deny the supposition concerning the specific rationale of society, since this is only logical. The individual rationale of society and the members collectively taken differ in essential qualities, I subdistinguish: if you take the members together reduplicatively, I deny; if under another respect, I concede.

The collection of members can be taken either confusedly, or ordered in another manner, or ordered to the common good of the society. Only in the last case are the members taken collectively and reduplicatively; and only then do they not differ from the society as such. Thus, for example, the citizens of Belgium and the Catholics of Belgium, even if all Belgians were Catholics, are reduplicatively different.

I insist. But even the individual rationale of society and the members taken collectively and reduplicatively have different essential qualities. For this society remains the same although several members have been changed. Therefore.

Reply. I deny the subsumed minor. And I distinguish the rationale. A society remains the same when several members have been changed: morally the same, I concede; physically, I deny. Moreover, observe that the members collectively taken are also morally judged to be the same.

The cause of moral identity is to be derived from the continuous rationale by which comparatively few persons enter or depart. If exceedingly many entered or departed at once, the multitude would be judged only specifically the same. For per se, since Titius and Caius are two individual persons, the intention of some good which is transferred from Titius to Caius can be only specifically similar. This also holds for new citizens who, with a similar mind, succeed into the place of the deceased.

4. One who usurps for himself a thing which belongs to a society is not immune from the stain of injustice even in part. But unless the thing belonged to a subject distinct from the members, he would be excused at least in part.

Reply. I concede the major. I deny the minor. For, apart from the fact that the part of the common thing falling to each individual is minimal, by a debt of justice the individual citizens are bound to permit the thing to remain common and not to make it proper to themselves even in part.