Tractate V: On Justice

I. What Is Intended in the Treatise. This treatise can occupy too small a place in this manual volume. Yet it will by no means lack its peculiar utility, if it exhibits, as it were synoptically, the principles of conclusions, with a brief demonstration added; if it teaches especially how to distinguish what is required or advised by the very law of nature, and what is left to be defined by positive statutes; if finally it supplies norms for detecting the way by which human laws influence the offices of conscience. Therefore our effort will tend here.

II. On various positive laws. We must by no means dissemble that difficulty is increased by the very multitude of laws which today, among so many various peoples, are passed almost daily. Yet it is lawful to bring into a few genera the laws to which we must chiefly attend. For besides canon law, which is by far the principal for the moral theologian, it seems sufficient, for our intention, that we consider three genera of legislations: the Latin, which borrows many things from ancient Roman law and from European customs; the Germanic, which does not stand far from the preceding, but shines by scientific elaboration; and the Anglo-American, which, in several points, is distinguished from the others by more proper marks, although it itself has by no means been withdrawn from the authority of Roman law (cf. Catholic Encyclopedia, under the word Law (Roman), art. Jos. I. Kelly).

As far as the matter allows, we shall put the documents of natural law before positive sanctions. But where separation cannot be made, we shall bring forward Italian law as an example or specimen, while not neglecting a sober sketch of other laws: which, in this international Institute, did not seem to have to be passed over.

Yet let no one think that we are deceived by that error that we hope to instruct our readers in civil laws in a few pages. This alone can we strive for, which moreover of itself suffices: that the fundamental ideas, which can be called as it were the soul of particular laws, be communicated, and that a few elements of positive law be handed down by which the theologian may be able to perceive the state of the question concerning various cases of conscience, and to recognize the frequent necessity of approaching experts in law.

For the easier understanding of the juridical exposition, certain things remain to be observed. 1. The Code of France, to which Napoleon gave his name, by brevity of speaking and method of arranging matters, far surpassed prior Bodies of Law, so that it introduced a new method of writing laws, which almost all cultivated nations, indeed recently the Church herself in her Code of Canon Law, have imitated. And since it sufficiently expressed the juridical persuasions and propensions of the declining eighteenth century, and at the same time composed Roman laws and the customs of the Franks, or of Germanic origin, not only because of the political authority of Napoleon I did it become common to several peoples ¹, but it also was author of the manner of ordering civil laws for several others, e.g. of the Brazilian republic and many States of Latin America.

Later Codes nevertheless did not omit to perfect the French accidentally. This, e.g., must be observed particularly concerning the Code of Italy. Besides, since the French Code sinned by the note of individualism, from the middle of the nineteenth century it had to be reformed or completed in France itself by several social laws.

2. While the Austrian Code is commended by solicitude concerning natural law, no other Code has been composed with more methodical preparation and long-lasting deliberation (of more than twenty years) of doctors and jurists than the Code which from the year 1900 began to rule the German Empire. Joined to that Code is the Law of Introduction, which sought accurately to define what could be retained from various particular laws. The promulgation of a Code of this kind had to exercise a certain force even in other regions; which is seen especially in Switzerland. For the Swiss Federation, from the beginning of the year 1912, is ruled by a new civil Code, which differs more than the preceding law from the Code of France; yet not so that we ought to separate proper Swiss law from the Latin. In Switzerland, moreover, besides the civil Code, there is a special Code of Obligations, to be consulted for contracts, and this, corrected in the first two sections, also obtained the force of obliging from January 1, 1912. In the Canadian dominion, the province of Quebec is ruled by its own civil Code, which approaches very closely to French law; while the other eight provinces, even in civil matters, use English law.

3. Concerning the laws of England and the federated States of North America, this must be observed: that by the name Common Law there is designated there the ancient English regime, resting not on written acts but on custom. This law, in each region, has often been derogated both by positive statutes and by jurisprudence which consulted equity.

Therefore, looking especially to the nature of the laws, by the name of Latin law we include the civil law of Latin America, Austria, Belgium, the Canadian province of Quebec, France, Switzerland, Spain, Italy, and Lusitania.

By the name of Germanic law, we designate the law introduced by the civil Code of Germany in 1900.

By the name of Anglican law, the law in force in England, in the eight provinces of the Canadian dominion, and in various parts of the British empire.

By the name of American law, the law of the U.S.A., if nevertheless you except the Philippine Islands and the State of Louisiana, which are ruled by Latin laws.

III. As to the contents of this treatise, this remains to be said. Since the last five precepts of the Decalogue, at least in their explicit formula, pertain to justice, our treatise will exhibit under one common rubric those things which writers are accustomed to place under various titles concerning the fifth, seventh, and tenth precepts. For concerning the sixth and ninth precepts we act in the brief Volume IV; to the eighth precept we reserve a special place after this treatise. But in the treatise itself we shall briefly propose those things which sometimes are inscribed concerning certain states of lay persons.

IV. Division. There will be three sections of this treatise: the first appointed to general notions; the second concerning the rights and offices of threefold justice; the third treating and discussing injustice and the connected obligation of restoring.

¹ Yet soon those nations endeavored to review the Code of France and to make a peculiar one for themselves. Thus in Holland, in the year 1833, its own civil Code was promulgated; the fundamental law of Belgium obliges the legislator to make new Codes, which work nevertheless, concerning civil law, has not yet been perfected. And just as Spain and Lusitania adapted the civil Code of France to their own character, so various colonies of each Nation, when they had grown into autonomous republics, began to prepare special civil Codes. Nor, after the laws have once been perfected, is labor ceased, so that, e.g., in the Mexican republic, the Code of December 13, 1870, was suppressed by the Code which began to be in force there from June 1, 1884, and to which a more recent law de relationibus familiaribus has partly derogated.