Parergon: The Taking of Another’s Property When the Owner is Unreasonably Unwilling

150. The object of the question. It pertains to the essence of theft, or of the injurious taking of another’s property, that the thing be taken from an owner who is reasonably unwilling. Thus all theologians reply with one voice. But when they are asked more precisely how that unreasonable protest of the owner is to be understood, “we do not find,” says Carrière,¹ “its meaning sufficiently explained among authors.”

¹ Op. cit., no. 983.

For it is asked whether it suffices that the owner be bound under some title to relinquish the thing, or whether it is necessary that he be obligated from commutative justice; the latter manner of speaking appears to please not a few. Cf. no. 141, 3.

151. The difficulty. Yet this principle does not square with the replies commonly received among those who write on practical theology. For, to pass over for the moment the case of a poor man in extreme need—which admits of various explanations, since some say that a rich man is bound by an office of justice to relieve such want, while others do not bind him from justice except not to resist—certainly a father does not owe from justice to support his son according to a station befitting him; still less is a husband obligated from justice to aid his wife’s family. Yet theologians permit both the son and the wife secretly to take from the goods of the parents or husband that with which each may provide for the end in question, unless perhaps they do not lack goods of their own.

Consequently, we judge that you will reply more severely than is right if you require an office of justice in the owner.

On the other hand, it does not suffice if the owner is bound under any title whatsoever to concede the thing. For who would permit a poor man who is pressed by a need which is grave simply, but not extreme, to snatch a notable sum from a rich man? Who would grant an outside person the opportunity to restrain an owner from useless or extravagant expenditures?

152. Approach to the solution. But if you investigate more deeply why these things are not lawful, an approach appears to us to be furnished to the genuine reply to the proposed question. For these things are declared illicit because, although the owner is not reasonable when he neglects the office of charity or prodigally gives away his goods, nevertheless he is reasonably unwilling that either the poor, except in extreme necessity, invade his goods, or that an outsider interpose himself in the administration of his affairs.² Nor would it be difficult to demonstrate that right order— would be disturbed if the usurpation of another’s property were rendered morally upright on account of causes of this kind.

² Cf. Carrière, loc. cit.; Billuart, De Iustitia [On Justice], diss. 11, art. 6, at the end; Rev. Fr. Cathrein, Moralphilosophie [Moral Philosophy], pt. 2, sect. 1, bk. 4, chap. 4, art. 3, §4, note (p. 308, 3rd ed.).

153. Solution. Since these things are so, we judge that a middle way must be held, which we define in this manner. It is lawful to invade the property of an unwilling owner when it is prudently judged that there is no reasonable cause—even when that invasion is considered—why the owner should take the deed ill.

Thus the things which we just said concerning the son and the wife are conveniently explained: since they are more closely joined to the father of the family, they more easily have an excuse for substituting themselves in his place. Nor is it less easily understood why a domestic person, more often than an outsider, can employ certain devices lest the owner badly abuse his things.

To this confirmation, which is taken from facts, an a priori argument is added. For a right is a faculty consonant with right reason. It does not appear that anyone can efficaciously insist upon a use of such a faculty which is wholly destitute of reason.

154. Corollary and general principle. But if matters are so, the cases stated above concerning a beggar in extreme need, a son, and a wife appear to be of a rationale not dissimilar, and they are reduced to one species. In the three cases, the right which remains to the owner over his things cannot be urged by him; the exclusion of these persons from these goods would be plainly unreasonable, so that the owner would not justly complain even of the manner in which, without permission, they take the same things. Therefore, as regards the use which they wish to make of it, they can treat the thing as unoccupied. Once they have made this use, they have validly and legitimately made the thing their own.

And so, to state now in a few words the rule concerning which we were asking: Regularly speaking, the owner is reasonably unwilling that another invade his property, unless he is bound from justice to give it. Nevertheless, due place for just exceptions, to be weighed morally, is afforded by: the extreme necessity of the one taking; closeness of person; sometimes the evident and urgent utility of him whose affair is conducted against his will—

as if you should restrain a man angry for the moment, even by employing some coercion, from a grave abuse.