Part VII. On the Seventh and Tenth Precepts of the Decalogue

(St. Thomas, II-II, q. 57 ff.; St. Alphonsus, Theologia Moralis, book III, nn. 486-961; Homo Apostolicus, tract 10.)¹

¹ Cf. Crolly, Disputationes theologicae de Iustitia et Iure, ad normam iuris municipalis britanici et hibernici conformatae; Waffelaert, De virtutibus cardinalibus, tract II, De Iustitia; Marres, De Iustitia; Pothier, De Iustitia; Vermeersch, Quaestiones de Iustitia; Van Gestel, De Iustitia et Lege Civili; Sweens, Institutiones theologicae de virtute cardinali Iustitiae; Van Egeren, Notationes de virtute Iustitiae; Duynstee, Burgerlijk Recht en Zielzorg.

The seventh and tenth precepts of the Decalogue command commutative justice, prohibit its violation or injustice strictly so called, and, when it has been violated, impose reparation or restitution; moreover, the seventh precept regards external acts, the tenth internal acts, at least directly. Therefore we shall speak first of commutative justice itself, then of injustice and restitution. But so that this whole matter may be clearer, it is useful both very briefly to recall to memory the things which elsewhere we discussed at length concerning justice taken more generally, and also to discuss in appendices the matter akin to commutative justice, that is, distributive justice and legal or social justice.

I. Notion of justice taken more generally. Justice taken more generally is a moral virtue inclining a man to render to each one his right (n. 377).

II. Conditions required for justice taken more generally. "The notion of justice consists in this, that there be rendered to another what is due to him according to equality" (St. Thomas, II-II, q. 80, single article); from these words it follows that three conditions are required for justice, namely alterity, debt, and equality (n. 379).

III. Division of justice taken more generally. Justice taken more generally is divided into commutative, distributive, and legal or social justice.

1. Commutative justice is: justice inclining an individual man to render to another individual his right, that is, a strict right, or a right founded in the devinction or quasi-devinction of some thing to some individual (n. 380).

2. Distributive justice is: justice inclining the prince to render to the members of society their right, that is, the goods which belong to them, with capacity, merits, and necessity considered (n. 381).

3. Legal justice is: justice inclining both subject and prince to render to society its right, that is, to promote the common good (n. 382).

Social justice, of which Pius XI speaks in the Encyclical Quadragesimo anno, since it regards the common good almost exclusively, belongs to legal justice.

IV. Fuller exposition; this is especially set forth by a fuller exposition both of the object of justice, that is, as is clear from the definition handed down, right,¹ and of its subject.

1. Notion of right. The word right is taken in different senses, for example for a moral and inviolable faculty in regard to something, that is, in regard to some thing or some action, whether one's own or another's; for a law granting some moral faculty in regard to something; for a body of laws, as when someone is said to study law; for the sentence of a judge, who therefore is said to declare the law; for the place in which sentence is pronounced, whence someone is said to appear in court.

Now right, insofar as it is the object of justice, is a thing due to someone according to some equality; namely the material object is the thing due, and the formal object is the character of debt. Moreover, under the name of thing we also comprehend an action or omission.

2. Source of right. The remote source of every right is law, whether natural or positive, and ultimately the eternal law, which is the origin of all laws according to these words of St. Alphonsus: "The will of God alone, as being most holy, most wise, most upright, is the one source of every law, of every rule, and of the measure of honesty" (Dichiarazione del sistema, n. 18). The proximate source of right is the moral faculty itself, on account of which some thing is due to someone. I said moral faculty, by which is understood some power with respect to some thing.

3. Division of right. Right, insofar as it is the object of justice, is divided:

a) By reason of origin, into natural right and positive right, according as it flows from natural law (n. 82) or from positive law (n. 89).

b) By reason of subject, into individual right and social right, according as it belongs to man as an individual, or as part of a whole, or as a member of society.

c) By reason of the title in which it is proximately founded, into right founded in the title of devinction or quasi-devinction² of a thing to some person, and this is the object of commutative justice; into right founded in the title of capacity, dignity, merit, or necessity, on account of which some good, for example an office, ought to be granted by the whole, that is, by the prince, to some member of society, and this is the object of distributive justice; into right founded in the ordination of subjects and of the prince to society, and this is the object of legal justice.

d) By reason of efficacy, into strict right and less strict right, according as it is founded in the title of devinction or quasi-devinction of a thing to some person, or in another of the titles just assigned.

Strict right, that is, the object of commutative justice, is distinguished into ius in re, or real right, and ius ad rem, according as a thing has already been bound to someone, or someone has a right that a thing, still bound to another, be bound to himself. This right is sometimes called ius in personam, insofar, namely, as some person, from commutative justice, is obliged to render some thing to someone (St. Alphonsus, III, 486).

4. Subject of right. A rational being, and it alone, is the subject of right. For right is a thing due to someone according to some equality. But something can be due only to a rational being.

The Minor is proved. Something can be due only to him who has a moral faculty in regard to something. But a moral faculty in regard to something belongs to a rational being, and to it alone.

The subsumed Minor is proved. A moral faculty belongs to him, and to him alone, who can and ought to direct himself to the ultimate end; for such a one and such a one alone enjoys the faculty of choosing means to the ultimate end, a faculty, I say, of which others ought to take account. But a rational being, as free, and it alone can and ought to direct itself to the ultimate end; irrational beings, as lacking liberty, cannot direct themselves. Therefore a moral faculty belongs to a rational being, and to it alone.

Corollary I. Even infants and the insane are capable of rights. This is clear: 1. from Sacred Scripture: "For as long as the heir is a little child, he differs nothing from a servant, although he is lord of all; but he is under tutors and governors until the time predetermined by the father";³ 2. from the consent of all nations and laws; 3. from the fact that nothing prevents some thing from being destined to the special utility of someone and therefore owed to him, even if in the use of the thing he must be directed by the reason and will of another.

Corollary II. Not only physical persons, but also moral persons, can be the subject of right, or at least be regarded as if they were the subject of right;⁴ concerning these we shall speak specifically later.

Corollary III. The capacity of acquiring a right can be restricted by authority, both civil and ecclesiastical, and this both directly, for example if someone is deprived of the usufruct of his own thing (n. 764), or is rendered incapable by reason of a solemn vow of poverty; and indirectly, insofar as certain things are placed outside commerce. The state in which someone exists deprived of the capacity of right is called civil death.

And with these things having been premised concerning justice taken more generally, let us proceed to the treatment of commutative justice, speaking, as we have already noted, first of commutative justice itself, then of injustice and restitution. We shall add a double appendix, the former on distributive justice, the latter on legal justice.

¹ Cf. Lijdsman, C.SS.R., Introductio in Ius Canonicum, vol. I, n. 1.

² By quasi-devinction I understand the power which belongs to a private person, so that some thing may be bound to him (ius ad rem).

³ Gal. 4:1-2.

⁴ It is disputed: 1. whether and 2. in what precise sense a moral person can be called the subject of right. Cf. Brinz, Pandekten, III, § 432-454; Ihering, Der Geist des Romischen Rechts; Vermeersch, Quaestiones de Iustitia, XIV; F. C. von Savigny, System des heutigen Romischen Rechts, II, § 85-103; d'Annibale, Summula Theologiae Moralis, I, n. 43; Waffelaert, Etude de theologie morale sur l'obligation en conscience des lois civiles, p. 157-184; Cathrein, Moralphilosophie, II, p. 394-395; Gierke, Das Deutsche Genossenschaftsrecht, cited by Duynstee, n. 22.