Introduction: The Right that is the Object of Justice

St. Thomas, Summa Theologiae, II–II, q. 57; Molina, De iustitia et iure, tr. 1, d. 2; Lessius, De iustitia et iure, c. 2; Cardinal de Lugo, De iustitia et iure, d. 1, s. 1; A. Van Gestel, De iustitia et lege civili, c. 1, § 2.

4. The various meanings of the word itself. Ius is used:

a) For the inviolable moral faculty with which a person is endowed. This is sometimes called the subjective acceptation¹ of the word;

¹ Nevertheless, it exists objectively no less than objective right; indeed, in its own manner, as we shall see, it assumes the character of an object. Hence the expression subjective right is criticized by R. P. Cathrein, S.J. (Philosophia moralis, no. 225). It has nevertheless been received, because this form of right inheres in our person.

b) For the object of that faculty, or for that which belongs to a person by reason of a right. Thus there is objective right;

c) For the rule of right, or law; indeed, for an entire system of laws: civil law, canon law, jurist;

d) For the very place where right is pronounced: to appear in court.

5. Right taken subjectively. Therefore, this first meaning of right, which must be explained accurately, coheres with the notion of a person, so much so that a person is described by jurists as the subject of right, and is distinguished from things by the fact that he is a being endowed with rights.

This very notion is drawn from a higher notion, according to which, in moral science, person designates a being existing for itself: that is, a being which does not exist merely for the end or good of others, but which exists for its own good and to whose good many other things are ordered. That being cannot be considered or treated by other persons as a means subordinated to themselves, but stands beside them as an associate and participant in the same dignity. All are commanded to revere this equal dignity, so that it is unlawful for any cause to destroy or disturb the ordering of a person toward his own good or end.

And this is the moral inviolability of a person; every rational supposit is such a person.

Every person, therefore, is inviolable insofar as he tends toward his end. But you cannot efficaciously pursue an end unless many means are at hand for you. Therefore, if the pursuit of the end is inviolable, it demands an inviolable faculty of effecting or obtaining that certain things be ordered to one’s proper end as means of attaining that end.

Once this ordering has been made, the means themselves, legitimately ordered to the proper end, will participate in the inviolability of the person himself.

It can also be stated otherwise: a person possesses an inviolable power of ordering himself toward his end. Therefore, because he cannot accomplish this in practice without certain means, he can also inviolably order those means toward his proper end or good, either by executing this ordering or by exacting it. This inviolable faculty is honored with the name of right.

Therefore right, according to the common rationale of every right, is defined as AN INVIOLABLE MORAL FACULTY OF A PERSON, and it is deservedly called a certain extension of personality.

Of a person: so that it may be distinguished from an inviolable moral faculty, if there is such a faculty, that rests upon another proximate title than personality.

Faculty: because it is possessed by the will by way of a potency, as a certain habitual power.

Moral: because, although consonant with the right order, it can nevertheless be impeded physically.

Inviolable: insofar as its observance is imposed upon all others and contempt for it is prohibited by divine law.

6. Right, a sign at once of nobility and of weakness. The fact that we possess rights properly so called reveals in us at once a certain innate nobility and a certain weakness.

Our nobility is made manifest from this, because on account of our rights we appear as the head of a certain order that ultimately conduces to our intrinsic good, while the character of a pure means in relation to other persons is wholly denied of us.

Yet a twofold weakness or imperfection is signified at the same time: a) A faculty whose violation is morally forbidden can be impeded physically; b) Rights have been attributed to the person on account of the person’s need. As R. P. Cathrein observes very well,² right is the safeguard which we need so that, in the exercise of our liberty, we may be protected against the assaults of other men.

² Philosophia moralis, no. 225.

Therefore Almighty God, who is identically His own end and cannot be impeded by anyone, is eminently but not formally endowed with rights.

You will say: Are created persons themselves not ordered further toward God?

Reply. In truth, when a person is described as the subject of right, the person is compared with other created persons. No right belongs to us against God; but we have an infinitely firmer safeguard in His infinite goodness, which is diffusive of itself.

As regards the present doubt, we are indeed referred to God, yet in such a manner that no good thereby accrues to Him, but only external glory, while in Him we attain the supreme good and beatitude.

7. Right taken objectively, or those things in which subjective right terminates.

a) If right means the faculty of ordering certain things toward one’s proper end, while a person is a being of such a kind that he cannot simply be ordered toward the good of others, it follows that the object of right is never a person as such.

Yet no innate dignity prevents things from being ordered entirely toward the good of some person. The bond by which things are bound to the person toward whose good they are ordered or referred is expressed by the possessive adjective mine, yours, and so forth.

Moreover, certain things appear from nature itself, or per se, to be connected with the good of some person—the operations of his members and faculties. These are already per se mine, yours, and so forth. Other things receive this connection from an accidental fact; such are external things.

Again, there is either some substance, which is strictly said to be had or possessed; or some action to be done freely by me; or, finally, some performance which I can exact from another.

Hence, from its object, right is now called an inviolable moral faculty of having certain things, of doing certain things, and of exacting certain things.

Thus far we have spoken of right insofar as it immediately affects things, taking this name in a broad sense.

b) But besides this immediate relation of certain things, in the broad sense, to some person, can there not be conceived—and does there not exist—another, a mediate relation, I say, through another person whose things they are immediately, and who through the things he has is referred in some measure to the former person?

To understand this, it is necessary to recall that, on account of the very perfection of men—so that they may be able to attain their end more efficaciously and fully and obtain that which Leo XIII calls “the perfect sufficiency of life”³—there exist, as a natural institution, civil society, and, as an institution of positive divine law, the Church.

³ Encyclical Immortale Dei.

Each of these societies or communities, therefore, truly exists for the sake of the persons of whom it is composed; immediately, however, for their sake taken commonly, not individually.

But a community does not really differ from the persons taken commonly.⁴ Therefore, just as it is said to exist for the sake of the persons taken commonly, society is equally well said to exist for its own sake. But if it exists for its own sake, it assumes the character of a person. In brief, the common good incumbent upon it is the good of the society itself; and consequently, while it lives for that good, it lives for itself and is a being existing for itself.⁵

⁴ “For since the commonwealth is nothing other than the collection of all its parts.” Molina, I, 12, 3.

⁵ This understanding of the common good seems one that must be carefully maintained and urged, lest with the rationalists you imagine the good of some abstract Being to which physical persons would have to be sacrificed.

And thus, alongside physical persons, the community exists as a moral person.

Come, then; let us examine this moral person more closely. In relation to the persons of whom it consists, it is rightly held to stand as a whole to its parts,⁶ as a body to its members. But just as the human body cannot exist either simply or perfectly without a certain conformation and adaptation of its members both in themselves, in relation to other members, and in relation to the whole body, and without the concert of the members toward the good of the body, so that community, which exists and acts through its members, requires, for the sake of its existence or well-being, that the members stand in a certain manner both in themselves, in relation to other members, and in relation to the community itself; and that by their works suitably combined they strive together toward the common good.

⁶ II–II, q. 61, art. 1, corpus.

This suitable disposition of the members coheres with the existence and good of the whole body and is necessary for them. Therefore God, who physically disposed the members of the body, will morally provide to society this disposition and concert of its members. How? Through the faculty of exacting it. The community, therefore, just as it has the right of existing, has the right of exacting those things, or of converting to its own good certain things which, such as actions or things, belong to the persons of whom it consists. Therefore these persons, who as such exist for themselves, exist for the community as members or parts; and those things which belong immediately to them belong mediately to the community itself, as it were by the right of members.

But conversely, just as from their insertion into the body the members of the physical body, according to their position and dignity, participate in the life and goods of the body, so the action by which the community pursues the common good conduces per se and mediately to the good of individuals insofar as they bear a relation to that community.

It is evident, moreover, that the members of the community have a right that the common action should thus conduce, in a proportional share, to their good. For society itself, as we have seen, is among the means by which the most provident God has provided for the need of individual men, so that they may more easily tend toward their end. Society fulfills this function of a means insofar as the administration of the commonwealth conduces to the good of its members.⁷

⁷ Most aptly R. D. Pottier, De Iure et Iustitia, diss. 3, s. 1, c. 1, no. 20: “The end of society is not some external good existing per se and ontologically outside man, which comes to him because he is physically placed beside other men in a material aggregation; rather, it is to be procured by human operations mutually coordinated toward that end.”

In its own manner, therefore, the community exists for the sake of the members, and the things that belong immediately to the community belong mediately to the members. These things belong to the members by the right of their community. For “that which belongs to the whole belongs in some manner to the part.” II–II, q. 61, art. 1, ad 2.

8. THE THREEFOLD SPECIES OF RIGHT TAKEN OBJECTIVELY.

One who has carefully perceived what has been said thus far will at the same time have no doubt concerning these other matters, which are of great utility.

a) Besides things properly so called, which can be ordered entirely toward the good of some person, physical persons themselves, with their personal dignity preserved—and consequently not through themselves but through those things which are theirs (cf. 7 b)—are ordered as parts toward the good of the moral person to which they belong;⁸ this moral person, in turn, is ordered in a similar manner as a whole toward the good of the physical persons as members.

⁸ “The common good is the end of the individual persons existing in the community” (II–II, q. 58, art. 9, ad 3).

b) A private person, besides the things which he can call his own because they are ordered immediately toward his good, can also call his own the things—in the broad sense, and therefore labors and external goods—which belong immediately to the community.

The community, in turn, besides those things which belong immediately to it, can also call its own the things connected immediately with the good of the persons who are members of the community.

c) By that threefold mine or his own, just explained under letter b, there is signified a special ordering of certain things toward the end or good of some person; with respect to this ordering, that person has an inviolable moral faculty. It therefore designates the threefold object of a faculty of this kind, that is, of right.

Something, however, is not mine or his own according to the same rationale in the three cases. In other words, these three orderings, whose common rationale is the one just explained, are not of the same formal rationale, but are distinguished from one another by a specific difference.

All perceive this; and it can be explained more deeply in this manner.

α) At first sight it is already manifest that the first acceptation of mine or his own can be used as soon as, besides a thing capable of being ordered, there are other men by whom the ordering that has been made must be held sacred, or as soon as there is some human coexistence; while the second and third do not come into use unless certain persons are compared with one another as parts and a whole, that is, unless men are joined in a perfect society.

It is no less evident that the first and second acceptations apply to a private person, while the third is proper to the community.

β) But, what contributes more to the specific difference, in the second and third acceptations the connection of things with the person is mediate: it is introduced through the person to whom they belong immediately and previously.

Nor is the mediate connection formally the same in the second and third acceptations. For in the second it corresponds to the relation of the whole to the parts; in the third, to the relation of the parts to the whole.

γ) Hence it follows: 1) That when the immediate connection of the goods with the person to whom they belong ceases, the mediate right also ceases; 2) That the immediate right of the other person cannot be neglected by the one who has the mediate right, nor can those things be regarded as exclusively or primarily his own; 3) That the material quantity corresponding to the right is defined differently for a different connection. For in the first case the thing is mine entirely, or in that quantity in which it is immediately connected with me. In the second and third cases, however, one must first observe what the immediate relation to the other person demands. Moreover, in the second case, attention must be given to the similar relation which the other members of the community have toward the whole. Hence, if certain things which belong to the community ought to become immediately the property of the members, the quantity for each one will be defined after you have first observed what must also be assigned to the other members. In brief, the citizens have a right that their good be procured by society equally, but for each according to his own place and condition. Finally, in the third case, one must first consider what the society needs for its existence or well-being; and then, if for that reason certain things belonging to the members must be made the property of the society, what each one must contribute according to his own part. Again in brief, the society has a right that it be served by the citizens equally, but according to the place and condition of each one. Therefore this quantity will be expressed not by an absolute number but by a proportional share.

d) From what has been said, it follows that right taken objectively is of three species, according to the threefold rationale of the debt which it satisfies. Nevertheless, it always corresponds to an inviolable moral faculty which safeguards personal dignity. Therefore it is referred univocally to the same genus.

9. Right taken as law. By a certain metonymy, the word right is transferred to law as to the very cause of right taken in the complete sense. For the moral inviolability which enters into the rationale of right implies a necessity imposed upon the will, or an obligation. This, however, is from law.

Moreover, this law is primarily divine law,⁹ which is nevertheless better called fas than ius;¹⁰ secondarily, it is human law, which has from divine law that it too is a secondary rule of morals.

⁹ Divine law is to be understood as natural law when civil society is in question; as both positive and natural law when the Church is in question. For from the positive will of God by which she exists as a perfect society, the Church possesses, besides the rights positively granted to her, all those which naturally belong to a perfect society. But at present we chiefly have civil society in view.

¹⁰ St. Thomas, II–II, q. 57, art. 1, ad 3.

10. You will ask about the order of reason between right taken as a faculty and law.

First of all is the eminent right of commanding which is proper to God. This is followed logically by the divine law or precept.

From that law there then flow the principal rights, or faculties, which belong to physical persons, and the very faculty of ordering toward the common good which the State or perfect society possesses. That faculty is exercised by human law, which is a secondary source of rights, or faculties, for persons, whether physical or moral.

11. What is to be held concerning right taken objectively?

It proceeds partly from God and partly from human law. For on account of each cause, not a few things are assigned to some person. In order that many other things may be attributed to a person, there is required, besides law, whether divine or human, an action of private persons: agreement, occupation.

But because, as we shall demonstrate, I acquire or preserve a right to no thing unless I in some manner use my faculty of acquiring or retaining it, right taken objectively, as such, always seems to us posterior to right taken subjectively.

To tell the truth, in this matter we are less pleased with the manner of speaking of those who, like R. P. Cathrein, establish the objective meaning of right as primary.

“From the fact,” he says in no. 226, “that something is owed to someone from justice,¹¹ there arises in him a moral faculty of acting or exacting.” For us, on the contrary, the objective acceptation of right derives from the subjective. Because I have a right, something is therefore owed to me. But I have a right because I am a person. Carrière puts it very well:¹² “Nothing is owed to another without a right in the other; hence right in the second manner, which is called formal right (legitimate power), is the foundation of the other right, which is called material or objective. Therefore something is owed to me insofar as I have a right to it.” In the same excellent work, the Reverend Father treats justice first (no. 142) and right afterward (no. 225), while we cannot conceive justice unless we have first attained the rationale of right.¹³

¹¹ Thus in the third edition. In the fourth, however, in place of “is owed from justice,” there is read “belongs as his own.”

¹² De Iustitia et Iure, no. 8.

¹³ To the point, Taparelli, Saggio teoretico di diritto naturale, no. 347: “From the idea of right there spontaneously arises the idea of social justice.”

We shall say briefly: Through law, both physical and moral persons are endowed with rights or inviolable faculties. The formal or virtual use of those faculties produces right taken objectively. Before every law is the supreme ordering faculty of God.