Section I: General Notions Concerning the Virtue of Justice

Very great utility will be in this brief section if it should happen to us to correct the less accurate but very common notion of right, and to dissipate the confusion under which several labor in distinguishing the three virtues of justice.

Definition. Justice, a special cardinal virtue, is a moral virtue by which we are inclined to render to each one his own right.

The Various Notion of Right. 1. Right in the definition is taken objectively, and it is that which belongs to another as his own, i.e. what is owed to someone according to the formal rights which he has as another person coordinated to the same ultimate end.

2. Formal or subjective right is the inviolable autonomy of a person, or of a being existing for itself, in pursuing the proper end on account of which it exists, and the inviolable relation of prevalence or quasi-dominion over things which are destined to the end or good of that person. For the need of the person demands, and the nature of things permits, that certain things be referred to the good of the person as means. These things, understood in the broad sense, are both certain substances, and actions freely to be done by a person, and the performances of others owed to this person as such. To the autonomy of the person corresponds the word I; to the destination of things toward the good of the person, the word Mine; yet we also call our members, body, and own soul mine.

3. Moreover, the nature of the person and of things demands that among these things there be active faculties ¹, to be exercised toward the end of the person, which, by the same title by which the other things of each person are his own, are morally inviolable. Not a few today think that subjective right is defined by an inviolable active faculty, as if by the first essential mark; whence the common description by which subjective right is described: the morally inviolable faculty of a person of having, acting, exacting something (according to the threefold object of right). But those faculties are not always in the persons whose matters are being treated: for several persons (the impubes, moral persons) cannot direct themselves toward the end. They are then in the persons by whom they are directed, as consequences of the office by which they must direct those persons ².

4. Right is also taken for the rule of right, or law; indeed for some whole system of laws: natural, positive, civil, canon law; an expert of law.

5. Indeed it is taken for the very place where law is pronounced: to appear in court.

¹ For my subjective faculty can indeed be an inviolable object to another.

² Some say that faculties are in those incapable persons but are not exercised by them. Certainly, when there is question of a physical faculty, that distinction between potency and act is well understood, nor then does the faculty reside in another. But when the faculty is wholly moral, a faculty without exercise is a faculty which is not had but which would be had if the person were capable. Besides, a moral person never exercises those faculties; and those faculties are possessed by certain physical persons. Shall we say that those faculties exist twice?

Threefold Right in Species, Threefold Justice. Besides physical persons, which are as many in number as there are rational supposits, there exist moral persons, which are constituted by physical persons conspiring into one end and reduced through that end to a certain unity. Two of this kind are perfect: the Church, which exists as an institution of positive divine law; and civil Society, which exists as a natural institution. In relation to those societies, physical persons, not as persons, but through the things which they have, are parts, while societies are the whole. But parts as such are on account of the whole; and the whole in turn is on account of the good of the parts; which is more true here, since those Societies exist on account of the perfection of physical persons.

Now, if a part is on account of the whole, that which is (by right) of the part is of the whole; and similarly, that which is of the whole is of the parts; not immediately, however, but by mediation of the right of the parts or of the whole of which they are immediately.

Therefore right can be immediate right and mediate right; and this latter is of a twofold ratio: for mediate is both that right which the whole has to those things which belong to the parts, and the right which the parts have to those things which belong to the whole.

But as many rights as there are in species, so many justices there are. Therefore there is a justice by which immediate right is rendered: this exists among persons who are, or are considered as, coordinated or equal, and is called commutative. There is also justice by which mediate right is rendered; this, however, is again divided into two species. In one species the parts render what is owed to the community as such, and it is general or legal justice; in the other, the community renders what it owes to the parts, and it is distributive justice.

Right of the Public Order or of Jurisdiction, and Right of the Private Order. The morally inviolable faculty which is found among rights, and is often taken for formal right itself, exists in one way on account of private persons, in another on account of Society. This latter ratio of right is of the public order and is called jurisdiction. Therefore jurisdiction is the public power of ruling a perfect Society, or of directing it to the common good. It is called jurisdiction because it contains the faculty of commanding the members, on account of the common good, various acts of virtues which constitute the necessary cooperation of the members toward the common good: by exercising such a faculty rights are spoken, i.e. defined.

These are the properties of all justice: 1. that it be toward another, i.e. that it satisfy a title which is in another insofar as he is a distinct person; - 2. that it do what it ought, not what it could honestly omit. For its formal honesty is that it satisfy the exigency of right; - 3. that it render the debt to equality, i.e. that it furnish as much as it owes.

On account of the first property, those things must accurately be distinguished which joined persons, e.g. father and son, owe one another insofar as they are joined, and insofar as they are persons. The former offices, in the example brought forward of father and son, will pertain to piety; the latter alone will be ruled either by justice alone or by justice concurring with piety. And in a more general way, those things which I owe to my neighbor insofar as he is another self pertain to charity; insofar as he is a distinct person, they enter the province of justice.

Division of Rights. 1. Looking to the proximate foundation, some rights are absolute, i.e. loosened in their origin from every special relation of persons, or relative, which are founded in special relations of persons ¹.

Looking to the order in which they are found, rights are of the public or private order. Rights of the public order are political rights, or rights of jurisdiction, which give a share of public power; others are called civil or private rights. These again are common rights of the person and citizen in Church and State, public rights; or family rights, which distinguish persons in the family; finally patrimonial rights.

Patrimony is a being of reason by which is designated the sum of rights and obligations which can be estimated by price and consequently have economic value. These are either rights in a thing, which give immediate power over some thing, or rights of credit, which affect the obligation of another, or rights of doing something; e.g. of accepting an inheritance, a donation, of making a will.

A correlative obligation of credit can be something of doing (furnishing work), omitting (not building, not planting), or paying some thing, i.e. of bringing it about that the dominion of some thing be transferred to the creditor. The creditor is then said to have a right to a thing.

Concerning these things cf. Colin and Capitant, I, p. 101-106; Pacifici-Mazzoni, II, n. 1-6. Therefore it is seen that the division of right into right in a thing and right to a thing, even if you attend to merely patrimonial rights, is by no means adequate, although it is very useful. Compared among themselves, right in a thing has an immediate termination in things; right to a thing has an immediate termination to another's action by which the thing becomes mine. By right in a thing I preserve what is already mine; by right to a thing, I exact from another that it become mine, and consequently I acquire. Wherefore right to a thing is called personal right or credit. What is mine is always now determinate in body and can be shown in the individual; what is owed to me can be a thing determined only by genus, e.g. 100 kilograms of wheat, 5000 lire. He who has right in a thing, of itself excludes all others, competes with no one, vindicates the thing everywhere as his own, by an action which is called in rem; he who has right to a thing can exact it by a merely personal action from him who owes, nor is he who is prior creditor necessarily preferred to those posterior.

3. Looking to the perfection of dominion, some are alienable, others inalienable. Alienation causes the right to pass to another or to be extinguished; and it must especially be distinguished from non-use of right, or from non-opposition of right. He who has a right can always validly effect by his consent that the note of injustice against himself be removed from another's act, even an illicit one, so that this always holds: "No injury is done to one consenting." But if the right is inalienable, that consent is always validly revoked, so that the note of injury is restored.

¹ Rather than, with Colin and Capitant, from the persons by whom they are circumscribed, we prefer to divide rights from their proximate foundation. For there is also an office incumbent upon all of not impeding the exercise of rights which from contract oblige Titius to furnish various things; and we would have to distinguish a third, mixed genus. For the family rights of father, husband, and tutor must be observed by all, and at the same time induce special relations between parents and children, between husband and wife, between tutor and ward.

I. Justice, a special cardinal virtue, is a moral virtue by which we are bent to render to each one his own right. In that definition right is taken objectively, or signifies what is owed to another on account of some formal right of his.

II. Formal or subjective right is the inviolable autonomy of the person in the pursuit of his end, and the inviolable relation of prevalence or dominion over things which are ordered to the good of that person. Those things can be substances (which man calls his own), actions freely to be done by a person, and performances of others; and also active faculties to be exercised toward the end of the person. Hence, by the more common but less accurate description of right, subjective right is called the morally inviolable faculty of a person of having, acting, exacting.

Under the name of objective right there also comes the rule of right or law; indeed the whole system or complex of laws: natural law, civil law, an expert of law; and the very place where law is pronounced: to appear in court.

III. In the present order, physical persons, or rational supposits of this world, actually pertain, or ought or can pertain, as parts to two perfect societies (moral persons): the Church and some civil society. But parts, as such, are on account of the whole, while in this case personal dignity is preserved; and the whole in turn is on account of the parts. Hence those things which are of the part are also of the whole, and that by reason of the parts; and those things which are of the whole are also of the parts, by reason of the whole. That is, the parts are on account of the whole with the rights which they have, and similarly the whole is on account of the parts with the rights which it possesses. Therefore those things which immediately are of the parts or of the whole are mediately (because they are of the parts or of the whole) of the whole or of the parts.

Thus it happens that right can be immediate and mediate; but mediate right is of a twofold ratio: the right which the whole has to those things which are of the parts, and the right which the parts have to those things which are of the whole.

But as many rights as there are, so many justices there are. Therefore there is justice which renders immediate right, among persons who are, or are considered as, coordinated or equal: it is called commutative; there is justice which renders the mediate right of the community: general or legal justice; and justice which, residing in the community, renders the mediate right of the parts: distributive justice.

IV. What is owed to the community as such is exacted by a right (taken for an active faculty) of the public order, which is called jurisdiction. This is the public power of ruling society or directing it to the common good.

V. All justice is toward another: satisfying a title which is in another as he is a distinct person; it does what it ought, satisfying the exigency of right, so that all its acts are properly necessary; it equals the debt: as much as it owes it furnishes, neither more nor less.

VI. Division of rights. 1. Looking to their proximate foundation, some rights are relative, others absolute, according as they are, or are not, founded in a special relation of persons.

2. Looking to the order in which they are found, they are of the public order: political or jurisdictional; or of the private order: private or civil rights, whether they define the common condition of citizens in Church or State, as public rights; or their proper condition in the family: family rights; or affect their proper economic condition: patrimonial rights. The complex of rights and obligations of that order is called patrimony.

Patrimonial rights are either rights in a thing, which confer immediate power over some thing; or rights of doing, and rights of credit: these oblige another to do or omit something, or to transfer the dominion of some thing, in which case the creditor is said to have right to a thing. Right in a thing is protected by action in rem; right to a thing, by action in personam (a condiction) against the debtor, and can be removed by a more powerful right of another, e.g. in the thing itself.

3. Looking to the perfection of dominion, some rights are alienable, others inalienable. Alienation, which transfers a right, must especially be distinguished from mere non-use or non-opposition of right, which gives place to the proverb: "No injury is done to one consenting."