Chapter I: Offices of Legal Justice

Definition. Legal justice, which is rendered to society as such, makes citizens inclined to do those acts which, either by common necessity or from the use of jurisdiction, are owed on account of the common good. - Those acts are formally honest; for indifferent acts, as such, do not conduce to the common good. They are, however, acts of various virtues. And hence legal justice is called general, because it does not have special matter to which, as chastity or charity does, it gives first honesty; but it exercises acts which are already honest from elsewhere, or even commanded, as owed on account of the common good.

The citizens, in whom the virtue exists as in its subject, are some princes, or those exercising public power, others subjects. Princes, as such, legal justice disposes to making good laws, whence it is said to exist in them architectonically, or to administering the republic well. Subjects, as such, it disposes to observing just laws well. Hence, since most acts of legal justice are commanded by law, it borrows the name of legal justice. Hence at the same time it is clear why, according to the various matter which is commanded, an act commanded by jurisdiction pertains to various virtues, so that the faithful man who observes the ecclesiastical fast cultivates temperance, and the Catholic who performs servile work on Sunday sins against religion. But to establish good laws, to administer well the republic or the Church is for rulers an office of commutative justice.

To piety or to other virtues belong the various good acts which citizens freely do with regard to the common good. This escapes not a few writers today, who confusedly ascribe those honest acts to legal justice.

You Ask Concerning the Force of Positive Law. Both canonical and civil human positive law can efficaciously dispose many things concerning the actions and things of subjects, on account of the common good. Many things also are not so terminated by divine law, natural or positive, that they can suffice for the mutual relations of men; but they must rather be further defined and accommodated to the present utilities of society: the matrimonial regime, inheritances, wills.

Positive law can, for the protection of weaker persons, make the same incapable of firm obligation; make certain agreements null with regard to the common good; impose certain solemnities to be observed in graver juridical acts, in order to forestall abuses and doubts; on account of the common good, create and extinguish rights; add new things to the conditions of agreements. By these various decrees, the human legislator can bind conscience. Now it is asked how far he has willed to bind it.

First of all the words of the law must be attended to, if they are clear; and one must answer for an obligation of conscience if they formally address conscience, or if, from a reasonable interpretation of the law, to which legislators are judged to have accommodated their mind, an obligation of conscience is gathered. This interpretation can vary with time and circumstances. Here also the force of some custom accedes.

Today, above all, a distinction must be made between ecclesiastical and civil laws. Ecclesiastical laws, as we observed in I, 253, of themselves oblige conscience, so that the presumption is for obligation. But the contrary must be said in our civil laws.

For today, in our civil laws, it seems one must answer rather for the least obligation of conscience: the common good itself suggests this, so that citizens may be in a more equal place before the law; and the profession of religious indifference on the part of many legislators demonstrates that such was the mind of the legislator. There also accedes the more vigilant and strong action today of the external forum, which brings it about that the legislator can more easily be content with external coercion.

Accordingly not a few writers, with whom we agree, establish this rule. In matter of justice, civil laws oblige conscience as much as is sufficient that public order and common peace be provided for. Wherefore they will oblige conscience: a) just laws after the definition of the judge by which a thing is adjudged to someone; b) before the sentence of the judge, laws which complete the silent natural law by their definitions. - But if the case can be solved by natural law, and there is a conflict between a natural title (say occupation) and a civil title, the thing seems able, up to the sentence of the judge, to be preserved by the natural title ¹. And this double criterion can be proposed: laws which immediately define real rights oblige conscience, at least when the definition is necessary; but after the sentence of the judge, laws which immediately prescribe certain acts to citizens. Cf. Van Gestel, De iustitia et lege, pp. 141, 203, 224, 225.

So long, however, as the matter concerns private patrimonial relations, not even the reason of the common good, or affection toward the fatherland, stirs citizens to execute those laws beyond what conscience commands.

Concerning the obligation of laws which impose taxes, we shall act below, where we treat of injustice.

¹ This formula, however, is rather our own. Often, from the principle which they have in common with us, they gather that in all laws which immediately and honestly define real rights there is of itself a force of binding conscience, while laws which impose an obligation hold conscience less immediately. But others, according to the testimony of R. P. Cornelisse himself, II, 10, 3°, restrict this force more to necessary things.

Legal justice commands various acts of virtues on account of the common good. But because those acts are already honest from elsewhere according to themselves, and pertain to all virtues (at least moral virtues), it is a general virtue, lacking special matter and commanding in the matter of all virtues. It is called legal because, except for manifest necessity of the common good, law defines its act.

Princes, as such, legal justice disposes to fulfilling their own office of commutative justice, that of making good laws, administering the republic well. Wherefore in them it is said to exist architectonically.

How far human law, which can directly oblige conscience, has willed to oblige it in matter of justice: this we can learn first of all by the common interpretation of the law. Today, however, according to approved authors, civil laws directly oblige conscience only so much as is sufficient that public order and common peace be provided for. Therefore just laws oblige conscience after the sentence of the judge by which a thing is adjudged to someone, lest there be a perpetual conflict between the external forum and the forum of conscience; and also before sentence, laws which supply the silent natural law, lest rights and goods remain in uncertainty.