Article — Vermeersch, Questions on Justice
Article III. On the Means to the End and Public Power
557. The general norm. The difference between a natural society and artificial societies is that men who found the latter sometimes fail in strength or in will itself, and thus not rarely strive toward an arbitrary end with unequal effort or means. God, on the contrary, as the author of nature, cannot fail in granting the means necessary per se. Hence this general norm can be established: Whatever is required per se for the end of the State inheres per se in the State; nor is there another rationale available for demonstrating the various rights of the State, or rights ordered to the State.
558. The origin and office of sovereignty. 1. By this requirement of the common good it is proved that the sovereignty of civil society is divinely sanctioned,1 and those things which a legitimate ruler can or cannot do per se are adjudged. This power is called public, since it rests upon no private relation and has been granted for governing the people. Accordingly:
1 By the French word State is meant the same thing that in Latin is called Res publica [commonwealth], or more often the whole civil hierarchy.
a) The Prince can, because the common good demands it, make acts of the various virtues obligatory, establish rights and duties, settle controversies by his judgment, and fortify his precepts with a sufficient sanction. This is jurisdiction.
b) Because public order is connected per se with the congruous vindication of offenses, he will also be able directly to intend the death of the guilty person, if a sanction of this kind should seem necessary for defending public order.
But because there is no connection per se between the common good and the death of an innocent person, it will not be lawful to kill an innocent person even for the safety of the kingdom.
c) Because the happiness of men is contained not only in security from enemies and in interior peace, but also denotes a positive abundance of goods, it is not sufficient for the Prince to protect rights; rather, he ought positively to assist in promoting every good. St. Thomas elegantly comprehends this thus: The Prince ought to take care that he establish in the multitude a good life, which consists in the unity of peace, direction toward good, and a sufficient abundance of things necessary for living well; that he preserve it when well established, overcoming the causes of ruin which threaten from external enemies, from malefactors, or from the very mortality of men duly discharging offices; and that he promote what has been preserved toward better things by correcting, supplying, and perfecting. (Cf. On the Government of Princes, bk. 1, chap. 15.)
Therefore, those are deceived who attribute to the Prince these parts alone: that, after the rights of citizens have been suitably composed among themselves, he render the citizens secure from internal enemies. This false rationale of the State is called Rechtsstaat [juridical State]. First proposed by liberal economists and admitted by Kant, it had its most absolute defender in von Humboldt.
d) But because private rights—for example, the rights of parents over children, of an owner over things, and of spouses over one another—are constituted by nature itself for the common good, their violation cannot conduce to the common good; hence public power ought to abstain from usurping private rights.
e) And because only one who is weak or incapable is to be assisted, only those goods which cannot be procured by private effort are to be procured publicly.
Thus we depart from those who expect almost everything from public power.
Then also because from the natural end of the State the genuine functions of the Prince can be derived only generically and per se. And indeed history demonstrates that different things have been permitted to public power in different States.2 Therefore, unless you wish—which is exceedingly difficult to suppose—to condemn as contrary to nature institutions which have prevailed for a long time and peacefully, it remains that you attribute no slight authority to a positive compact of men, express or tacit, for enlarging or restricting the functions of public power. And in this manner, in our State, by express law the State is prohibited from furnishing several things which it could and ought to furnish per se; for example, it must grant complete liberty to profess opinions, protect not one religion but several, and so forth. For the rest, what the rights and privileges of local groups are; how far citizens can exercise censure of rulers, send secret letters, and be immune from personal coercion; in what manner the Prince can command, judge, and punish—whether only in writing and by general decrees, or also by particular precepts issued orally—you will find established differently in different places according to received custom.
2 Thus the Greeks wished one education of children to be common to all, the Romans did not (cf. Cicero, On the Commonwealth, bk. 4, chap. 3), and Catholics reject it.
559. Concerning the first subject of power. 1. “All power is from God,” and it does not take its first origin from some delegation by which citizens, by consenting, transfer to one or several a power partly innate in each; rather, when they coalesce into the body of one people, it is granted by God to the governor of the State. Thus all Catholics, against Rousseau.
2. But is the multitude itself, necessarily and always, the first subject upon which power is divinely conferred? Thus C. Bellarmine,3 Suárez,4 and not a few Scholastics. This opinion was by no means struck down by the Encyclical Letter Diuturnum illud (June 19, 1881), although on its face the Letter may appear contrary.5
3 Controversies: On the Laity, bk. 3, chap. 6.
4 De legibus [On Laws], bk. 3, chaps. 2 and 4; Defensio fidei [Defense of the Faith], bk. 3, chap. 2, no. 7.
5 The passage is this: “By this choice (of the multitude) the Prince is designated; the rights of sovereignty are not conferred, nor is command entrusted, but it is determined by whom it is to be exercised.” Yet from the context of the discourse and from other Encyclical Letters it is evident that this alone was proposed by the Pontiff: to set forth the Catholic doctrine concerning public power, which assigns a divine source to that power and denies that it is a revocable mandate of the people; he did not, however, definitely require that authority had not originally belonged to the people, as the subject which first received it from God. Cf. Moulaert, L’Église et l’État, pp. 87-92.
We nevertheless do not approve this, both because it is something fictitious—for what is the necessity or opportuneness of that authority in the multitude, which it will immediately transfer to the ruler without any use of its own?—and because it is contrary to history. For, in the primitive age, paternal authority first, then patriarchal authority, gradually and imperceptibly—as was fitting—passed into political authority, for the most part, not to say always. At what moment, I ask, could the multitude then have been conscious that it had any sovereignty to abdicate, when it always seems to have been under the dominion of its head? Add that this explanation was devised on the occasion of the controversy with the Protestants, and especially with King James I, in order to show royal power to be less sacred than pontifical power. Hence the Scholastics, with their minds preoccupied, could easily have been deceived.
If you inquire concerning the mind of the Angelic Doctor, whom, as commonly happens, the opposing parties claim as their own, we think the following should be said briefly.
a) No passage is adduced in which he is shown certainly to favor the tenets of the Scholastics concerning a tacit pact by which the multitude delegated to the Prince a power previously possessed by itself. Words are indeed brought forward by which the Prince is said to bear the person or act in the place of the multitude; but these, or similar words, do not of themselves prove authority delegated by the multitude. Thus a guardian acts in the place or bears the person of a ward; yet he received no authority from the ward. But because the commonwealth is the affair of the people, it would certainly be administered by the common consent of all if power were not required, according to that saying of St. Thomas:6 “To order toward an end belongs to him whose proper end it is.” Hence he who is Prince always acts in the place of the multitude and conducts affairs in its name, insofar as he acts for the incapable multitude and administers the commonwealth, but by no means insofar as he received power from the multitude itself.
6 I-II, q. 90, art. 3, corpus.
b) Indeed, in the very passages from which the supporters of the Scholastic doctrine argue, St. Thomas seems contrary to that opinion. Otherwise, in I-II, q. 90, art. 3, after he had said, “To order something toward the common good belongs either to the whole multitude or to someone acting in the place of the whole multitude, and therefore to make a law belongs either to the whole multitude or to a public person,” it would have been natural for him to add “delegated by the multitude,” whereas he now completes the sentence with these words: “or it belongs to the person who has care of the whole multitude.” And in I-II, q. 97, art. 3, ad 3, he affirmed concerning every multitude, and not only that which he calls free—that is, one employing a democratic government—that a law cannot be enacted by the Prince “except insofar as he bears the person of the multitude.”
c) But in On the Government of Princes, bk. 1, chap. 6, he has statements which cannot be reconciled with the tenets of the Scholastics. For there, treating the question of expelling a tyrant,7 he openly grants to a multitude which has bound itself to a king by some pact, even a perpetual one, a certain public authority by which it can expel the tyrant as an unfaithful king. Therefore, since in the doctrine of the Scholastics every multitude is bound by a pact, he ought to have permitted every multitude what he now openly declares to be lawful only for some.
7 Observe that St. Thomas resists the expulsion of a tyrant less severely than some have thought or even written. The said sixth chapter of the first book must certainly be consulted.
Add that when the Holy Doctor discusses the various governments expressly in the same work, bk. 1, chaps. 1, 2, and 12, he says not a word concerning the popular origin of monarchical government to confirm the doctrine of the Scholastics.
3. Must some personal and unique fitness sometimes be adduced as the formal cause of legitimate command? Thus many today, whether they propose this explanation as universal or merely place such fitness among the various causes by which the subject can be designated. (Thus Fr. Cathrein, no. 504.)
But the explanation of the latter opinion is inadequate when the question concerns a formal rationale which can apply to all cases. If you maintain the former, does it not appear fictitious? Is it not probable that often, although a greater ability on the part of several was passed over, supreme power fell to a less excellent ruler, indeed one less willingly accepted by the multitude—especially if you consider not only the first origin of society, but the innumerable cases in which, after the line of rulers was interrupted, public power had to be conferred as at the first origin?
4. We respond better, as we think, and at the same time more plainly and adequately, by saying that the original fact by which a true title is conferred is peaceful occupation.
This is commended by: a) The analogy of right. In this manner a thing belonging to no one passes into the possession of a definite owner. Now, although public power is to be exercised not for one's own utility but for the common utility, it is nevertheless possessed as a certain property.
Otherwise, how would an offense against commutative justice be committed by expelling a king? This is certainly explained with greater difficulty in the other tenets. b) The very argument which Suárez uses.8 “Nor is there any rationale,” he says, “why this (political jurisdiction) should be attributed by the nature of the thing to these with respect to those, rather than conversely.” Therefore, we shall conclude thus: in the first instant of reason it belongs to no one, and lies open for occupation. But he who has occupied it peacefully has introduced between the thing to be possessed and himself a certain relation on account of which he is to be preferred to others. Yet you would infer altogether wrongly, from the fact that the thing stands equally with respect to all, a positive community of the thing. As is said of corporeal things, it belongs negatively to all who can occupy it, and becomes positively that of the first occupant. c) Facts. As often as someone reigns, he is said to command legitimately unless an unprescribed right of a prior Prince stands in the way. This prescription, moreover, confirms that the cause of possessing political power and that of dominion over things are similar. At the same time, by this doctrine it is easily explained why in the beginning the one who was patriarch became, as if necessarily, Prince or King: for he was placed in such a position that the first occupation had to fall to him. But if one person is fit, he also will first occupy the supreme power. Thus the other opinions can be brought back to a certain agreement.
8 De legibus [On Laws], bk. 3, chap. 2, no. 3.
For this first occupation, since free persons are to be ruled, a certain tacit assent is required on the part of those saying or doing nothing to the contrary; but this negative approval, which differs very greatly from a positive vote,9 pertains rather to the material or quasi-physical taking, and is not the formal cause of a just title. Thereafter, according to the various circumstances, one or several will occupy it, absolutely or in a more tempered manner, leaving a part to counselors, or to the people, or to the greater part of the votes.10
9 Even when order is restored after affairs have been disturbed, what else is observed? One person or a few occupy the commonwealth; in the manner which pleases them, they convoke assemblies in which the votes of some, not of all, are sought, so that most are not asked about their wishes, as though they stood outside the commonwealth.
10 We speak thus because, when supreme power rests with a group or the people, it seems in reality to pertain to the greater part of the votes—which certainly will be composed in one manner in one case and in another manner in another—rather than to the group itself.