Judgment (Judicium), the Act of Justice

§ 1. On the Nature of Justice.

266. Notion of right. The notion of justice supposes the notion of right, which is its object. Right, in its proper and primary sense, signifies the inviolable moral power of a person to have, do, or exact something; in this sense we say: he uses his right, he transfers his right to another. Secondarily, it signifies that which is just, equal, or what is owed to another, namely the objects themselves about which that power turns; in this sense we say: to each one his own right must be given. These two significations of right are correlative; the one exhibits the thing owed, the other the title of the debt: for nothing would be owed to anyone unless he had the power of exacting or retaining it. Now right, insofar as it signifies that which is owed to another, constitutes the object of justice.²

a. The power is called moral, both because it is not physical and because it is according to right reason; it is called inviolable because each one is bound to observe it, so that it cannot be violated without fault. But the reason and foundation of this inviolability is the dignity and independence of the person, which consists in this, that man has the character of an end, not of a means, and that he ought to tend toward his end, not be driven to it. Since he cannot effect this unless he can order certain created goods to his good and end, he is furnished with this twofold and inviolable power: of ordering himself to his end, and of applying certain goods as means for obtaining his proper end and good.

b. Moral power or right is distinguished in two ways: improperly so called, which is founded in superiority and cannot be rendered to equality, of which kind is God's right to worship, a father's right to obedience; and properly so called, which is founded in personal independence and can be rendered to equality, of which kind is the laborer's right to wages.

c. A threefold debt is distinguished: a. moral debt, which arises only from the honesty of virtue, without there being in another the power of exacting it, as is the debt of charity, mercy, gratitude, truthfulness; therefore he who does not observe this debt does not injure the right of another, but only falls short of the honesty of the virtue which each one must observe in his actions. b. legal debt, which arises from right improperly so called, which another can therefore exact as owed to himself, but which nevertheless cannot be rendered to equality, as is the debt of religion, piety, obedience.³ c. juridical debt, which arises from right properly so called, which another therefore exacts as owed to himself by his own right, and which also can and must be rendered to equality, as is the debt of justice.

d. Right, insofar as it signifies a power, is subjective right; insofar as it signifies a debt, it is objective right. To subjective right there corresponds on the other side a debt or juridical office, at least of not hindering another in the use of his right. Wherefore a juridical relation (das Rechtsverhaltnis) involves both: right and juridical debt.

¹ St. Thomas, II-II, q. 57 ff.; q. 61. Molina, De iustitia et iure, tract. 1. Lessius, De iustitia et iure, l. 2, sect. 1, c. 1 ff. Lugo, De iure et iustitia, disp. 1, sect. 1. Holzmann, Theologia moralis, IV, n. 286-336. Vermeersch, Quaestiones de iustitia (Bruges: Beyaert, 1901), n. 1-76. Pottier, De iure et iustitia (Liege: Ancion, 1900). Victor Cathrein, Die Cardinaltugend der Gerechtigkeit, Zeitschrift fur kath. Theologie 1901, p. 635 ff.

² Cf. what Lugo (De iustitia, disp. 1, n. 2 ff.), Vermeersch (loc. cit., n. 5 ff.), Cathrein (Moralphilosophie, I, p. 415 ff.), and others dispute concerning the nature and properties of right, subtly as well as ingeniously.

³ Legal debt is so called because this debt can also be urged by human law.

267. Division of right. Right properly so called, insofar as it is a legitimate power, is distinguished in two ways: right in a thing and right to a thing.

a. Right in a thing is the legitimate power which someone has in a thing already his own, of which kind is the right in a thing bought. This right immediately affects the thing itself and therefore is called real right (dingliches Recht).

a. Therefore he who has right in a thing has the thing itself obligated and bound to himself; wherefore this right gives a personal and real action, namely, the one having right in a thing can pursue it in court against whomever possesses it, and take it wherever he has found it.

b. For acquiring right in a thing three conditions are required: a. a just title, as donation, purchase, right of inheritance; b. that the thing be determined as an individual; c. delivery of the thing, at least for the most part.

b. Right to a thing is the legitimate power which someone has that some thing may become his, of which kind is the right to a promised thing, the right to payment of a debt. This right does not immediately affect the thing itself but the person, that he deliver the thing owed, and therefore it is called personal right (Forderungsrecht).

a. Therefore he who has right to a thing has not the thing itself, but the person, bound and obligated to himself for delivering the thing to him; wherefore this right gives only a personal action against the debtor, but not an action against the thing itself or against a third person who perhaps possesses the thing owed.

b. For acquiring right to a thing, which is also called inchoative, nothing else is required except a just title, by force of which the thing can be exacted. Titles of this kind are the law which grants this right, the fact from which it arises, as death, from which arises inheritance by intestacy before acceptance, donation, sale before delivery of the thing. In some codes sale already before delivery of the thing produces right in the thing.

268. Notion of justice.¹ Justice is the moral virtue which inclines man to render to each one his own right, or what is owed to him, according to equality.

a. The name justice is taken in three ways:

a. In a broader and improper sense it denotes both the complex of all virtues together and any virtue whatever, since it is some part of that complex, some justice. In the former sense it is said: Blessed are they who hunger and thirst after justice.² Thus it befits us to fulfill all justice;³ in the latter: Take heed that you do not do your justice, that is, your mercy, before men.⁴

b. In a stricter and improper sense it signifies some genus of virtues, namely those moral virtues which order man to another, whether God or man, and which are reduced to the cardinal virtue of justice as integral and potential parts.

c. Strictly and properly it signifies the moral and cardinal virtue which the proposed definition exhibits.

b. Three things belong to the nature of justice:

a. That it be toward another: for no one can properly be just or unjust toward himself. Therefore distinction of person is required between him who renders the debt and him to whom it is rendered, so that justice may have a place, whether the person is physical or moral.

b. That what is rendered to another be owed to him by his own right. That debt is called owed by one's own right which is founded in the personal dignity of the other and in his independence which results from it (266, b).

Since justice by its nature is toward another and is founded in individual independence, theologians asked whether a debt of justice intervenes between father and son, since the son is something of the father and what belongs to the son belongs to the father. The question is solved by making a distinction between father and son insofar as they are father and son, and insofar as they are men. Therefore in those obligations which exist only because the one is father and the other son, the nature of justice does not intervene between them; but in those obligations which exist because they are men, the nature of justice does intervene between them. Hence if a father does not nourish his son, and a son does not obey his father, as each is bound, they do not injure justice; but if a father detracts from his son, and a son steals from his father, each injures justice.⁵

c. That the debt be rendered to another according to equality. He renders the debt according to equality who pays it adequately, or in such a way that he no longer owes anything further.

c. The material object of justice is everything which is owed to another by his own right; the formal object is the natural honesty which is discerned in this, that to each one there be rendered adequately what is owed to him: for justice intends this on account of the natural honesty intrinsic to it, that equality be established between the right of the one and the debt of the other.

¹ The opinions of authors concerning justice and its species are various. Many attribute the nature of justice properly so called to commutative justice alone, which they distinguish from distributive and legal justice by the name of justice simply perfect or most perfect. Others, on the contrary, attribute the nature of justice properly so called both to commutative justice and to distributive and legal justice, and refer them as true species to justice generically accepted. This opinion, which among the older authors Tanner, Holzmann, Metzger, Coel. Mayr, and others defend, among recent authors P. Vermeersch learnedly champions (loc. cit., n. 1-70).

² Matt. 5, 6.

³ Matt. 3, 15; cf. Matt. 1, 19; Luke 1, 6.

⁴ Matt. 6, 1.

⁵ Cf. St. Thomas II-II, q. 57, a. 4. Ballerini-Palmieri III, n. 4.

269. There are three species of justice when account is taken of the relations which actually exist in civil society: commutative, distributive, and legal justice. For in the republic there is a threefold order in which to another his own right must be given: the order of part to part, citizen to citizen, which order commutative justice rules; the order of the whole to the parts, the community to the citizens, which distributive justice rules; the order of the parts to the whole, the citizens to the community, which legal justice rules.

a. In the common nature of justice all agree univocally, since the three elements required for the essence of justice are found in all; nevertheless each one participates in it in a specifically diverse mode. The three species of justice agree in this, that their object is right properly so called and therefore perfect, namely that which is founded in the dignity and independence of a person, whether physical or moral, and that they render this right according to equality. But they differ in this, that the nature of the right and of the debt which they regard is essentially diverse, and in like manner the equality which they establish between debt and what is received is specifically diverse.

b. There are three rights properly so called, but specifically diverse: a. the right of a private person toward a private person, or of a part toward a part of the same community, which commutative justice regards; b. the right of a private person, or part of society, toward society, which distributive justice regards; c. the right of society as such toward private persons, or parts of society, which legal justice regards. From the threefold diverse right there arises a threefold diverse debt consonant with the right, which the three virtues of justice pay: the debt of a private person or part to furnish that which a private person exacts by his right; the debt of the community as such to furnish that which a private person, a member or part of the same community, exacts by his right; the debt of a private person or part to furnish that which the community exacts by its right from its parts and members.

270. Commutative justice is that by which a private person gives to a private person what is owed to him by right.

a. It is called commutative because it turns especially about exchanges, purchases and sales, and other contracts. Citizens among whom exchanges are made constitute the subject of commutative justice.

b. The material object of commutative justice is the goods of each private person which belong exclusively to him. In exchanging these goods, to each one there must be rendered what is owed to him, or care must be taken that no one be deprived of his own thing. The formal object is the honesty of equality between the right of one private person and the juridical debt of another likewise private person, both of whom are members of the community.

c. It belongs to all species of justice to render to another the debt owed by right; but it is peculiar to commutative justice to render to another his own thing, either completely or at least inchoatively (n. 267, b), since its material object is things which have already in some way been made the proper things of another, as when the debt of wages is rendered to a laborer.

d. Since there is a manifest difference between the right which commutative justice regards and the right which distributive justice regards, nothing prevents the former from being able to be called strict right, the latter less strict right, although both are true right, properly so called and perfect, inasmuch as each contains in itself the integral nature of right described above. For the right which commutative justice regards is a right of property, or right in a thing, or at least to a thing.

271. Distributive justice is that by which the community gives to citizens what is owed to them by right; for to citizens, by the very fact that they are parts of society, there belongs the right of exacting that they be assisted by society in the pursuit of their end, according as the nature of society bears; and conversely there rests upon society the office of caring that from common goods there be given to each what is owed to them.

a. The office of distributing common goods inheres in those who represent society, princes and their ministers: for these alone can act for society and in the name of society. Therefore these constitute the subject of distributive justice.

b. The material object of distributive justice is common goods, of which kind are the protection of rights, money for erecting public schools, subsidies for promoting the sciences and arts, for relieving the need of citizens, etc.; public offices, common burdens. The formal object is the honesty of equality between the less strict right of the private person, insofar as he is a part of the community, and the juridical debt of the community as such.

c. Distributive justice must render according to equality what is owed to citizens; nevertheless that equality is not of thing to thing, but of proportion of things to citizens, so that goods are proportioned to merits, subsidies to needs, burdens to the faculties of citizens.

d. The injury of distributive justice is called acceptance of persons. This properly consists in this, that in the distribution of common goods attention is paid not to the dignity of persons, but to other qualities, e.g. consanguinity, friendship.

272. Legal justice is that by which there is given to the community what is owed to it for procuring the common good.

a. The material object is constituted by certain acts of diverse virtues which the common good exacts: for society then has itself well if its members are well disposed and ordered in relation to God, to themselves, to other members of the same society, and to society itself. These acts, as owed to society, are commanded either by positive law or by natural law. The formal object is the honesty of equality between the right of the community as such and the juridical debt of the part as such.

b. As regards the subject of legal justice, this virtue is found both in the prince and in subjects, but it is exercised by them in diverse acts: the prince exercises it by prescribing those things which are necessary for procuring the common good; subjects by obeying and carrying out those things which have been prescribed for the common good.

c. Legal justice renders a debt according to equality insofar as it furnishes what is owed to the community, for example, pays tribute, performs military service, in such a way that the debt is now extinguished.

d. This justice is called legal, both because law determines the acts of virtues which are necessary for the common good, and because through it the citizen conforms himself to law; it is called general, not because it has no special object, but because its material object is the acts of all other virtues, insofar as they are owed to the community.

e. Those who in this time treat of the social question often speak of social justice, by which name they signify either legal justice, because its formal object is the common or social good of men living in civil society, or at the same time legal and distributive justice, insofar as the latter exacts that common advantages and burdens be distributed according to the norm of equality.

Note. Vindicative justice, which afflicts the guilty with a just punishment, is reduced by some to legal justice, insofar as the common good exacts that the superior punish crimes and the guilty man, by obeying the sentence of the judge, pay the penalty. By others it is reduced to distributive justice, insofar as it inflicts punishments congruous with the quantity of crimes. Finally, by others it is considered as a special virtue distinct from the rest, whose formal object is the natural honesty which is contained in this, that the moral order injured by a crime be in some measure repaired through punishment. Yet in no way can it be numbered as a fourth species among the subjective parts of justice, because the formal nature of justice does not belong to it. For justice properly so called regards a true right in him to whom the debt is rendered; but no one would say that the guilty man has a right to punishment. Therefore vindicative justice, if it is considered as a special virtue, is referred not to the subjective parts, but to the potential parts of justice, and is called vindication.

273. Parts of justice. 1. The subjective parts of justice are commutative, distributive, and legal justice.

For establishing an accurate division of the cardinal virtue of justice, justice generically accepted must immediately be divided into two species, namely general and particular justice, according as the good about which justice turns is owed to the community or to a private person. Then particular justice is again divided into two species, into distributive justice, which has society, a moral person, for its subject, and commutative justice, which has a private person for its subject.

2. The integral parts of justice are two: to do good and to decline from evil.¹

The reason why, as integral parts of justice, two elements are posited which are found in all virtues must be taken from the peculiar nature of justice. For justice has this as proper to it, that it can and must be observed in a twofold mode, through a negative act, not taking what belongs to another, and through a positive act, rendering the debt, so that even he is truly called just who does not take what belongs to another. On the contrary, other virtues, e.g. temperance, can be observed in only one mode, namely through positive acts exact according to the norm of temperance; for he who does not eat is not called temperate. Now through negative acts of justice we decline from evil, but through positive acts we do good.

3. The potential parts of justice, which have some likeness with justice but nevertheless fall short of the perfect nature of justice, are all virtues which are toward another.

But they fall short of the perfect nature of justice:

a. some, because they do not regard debt: gratitude, vindication, truthfulness, friendship, liberality, equity;

b. others, because they do not regard juridical debt, and the legal debt which they do regard is so great that it cannot be rendered according to equality: religion, piety, observance, obedience.

§ 2. On the Obligation of Justice.

¹ St. Thomas II-II, q. 79, a. 1.

274. Principles. 1. Commutative justice obliges of itself under grave obligation and with the burden of restitution, if it has been injured.

a. The end which commutative justice regards is of great moment, namely both private and public good: for by preserving another's right uninjured, it provides both for mutual charity and conjunction among men, and for public peace and tranquillity. Hence St. Paul says: Do not err: neither fornicators ... nor thieves ... nor the rapacious shall possess the kingdom of God.¹ Yet it admits smallness of matter, because an injury of this justice in a slight thing does not gravely oppose its end.

b. Commutative justice exacts that to each one be given what is his; therefore if through an injury of commutative justice there is taken from another what is his, either by theft or by damage-infliction, justice itself exacts that what has been taken from another be rendered; but it is rendered through restitution; therefore it obliges to restitution.

2. Legal and distributive justice likewise oblige under grave obligation, because the injury of each of these forms of justice also can introduce grave disorder into society; nevertheless of themselves they do not oblige with the burden of restitution.

To explain why injury of commutative justice, but by no means injury of distributive justice, induces an obligation of restitution, these things are to be noted. Injury of commutative justice affects a good which already in some way, at least inchoatively, has been appropriated to one or to individuals, which therefore already belongs to one or to individuals by strict right, in a thing or at least to a thing. But injury of distributive justice affects a good which in no way, not even inchoatively, has been appropriated to one or to individuals, which therefore by strict right belongs not to individuals but to the community alone, and is only destined to be appropriated to individuals through distribution. The same must be said concerning the injury of legal justice through defrauding taxes.

3. Accidentally, injury of legal, vindicative, and especially distributive justice also obliges to restitution, namely when commutative justice is injured at the same time. For it often happens that by reason of a pact, either explicit or implicit, the obligations of the other species of justice must also be observed from commutative justice, and therefore their injuries likewise induce an injury of strict right.

a. With distributive justice, commutative justice is injured at the same time: a. in distributing goods, if the distributor confers offices and benefits on the unworthy, so that subjects suffer damage on account of bad administration, which a superior, both ecclesiastical and civil, is held by strict debt to avert; b. in distributing burdens, e.g. in imposing taxes, when a greater burden is imposed on subjects than the common good exacts according to the faculties of individuals. For subjects have a strict right not to be deprived of their goods unless the common good exacts this according to the measure of their powers.

b. With vindicative justice, commutative justice is injured at the same time, both if delinquents are not punished with damage to others, and if they are struck with a punishment more grave than is just. For the judge is held by strict obligation toward citizens to impede by just punishment that delinquents inflict damages, and toward delinquents not to punish them beyond what is condign. Therefore if the guilty man is punished with a punishment more grave than is just, through this excess of punishment commutative justice toward the guilty man is injured at the same time.

c. With legal justice, commutative justice is injured at the same time if the prince by unjust laws and statutes inflicts damage on subjects in their goods. For subjects have a strict right of exacting that damage in their goods not be inflicted on them.

¹ 1 Cor. 6, 9.

Judgment.—Judgment, or the right determination of what is just and due to others, is the proper act of the virtue of justice, and hence Aristotle (Ethics, lib. V, cap. 7) declares that people take their disputes to a judge as to justice personified. Judgment is either public or private. (a) Public judgment is passed by a judge who has the authority to compel disputing parties to abide by his decisions. (b) Private judgment is passed by individuals without public authority concerning the morals or conduct of others.

Since judgment is an act of virtue, it is lawful, and we find that both in the Old and the New Testament men have been appointed with authority to judge others. Thus, God ordered that judges be chosen in all the cities of Israel (Deut., xvi. 18); St. Paul declares that the judge is the minister of God (Rom., xiii. 4), and from Apostolic times tribunals have been set up in the Church. But certain conditions are required for moral goodness, both in those who ask for judgment and in those who pass judgment.

(a) Thus, those who seek judgment must be actuated by proper motives and must conduct themselves in a virtuous manner. Our Lord in Matt., v, teaches that it is better to suffer temporal loss rather than to contend in judgment from a motive of revenge to the prejudice of one’s spiritual good, and St. Paul condemns the Corinthians because they gave scandal by reason of their lawsuits before heathen tribunals and had recourse to frauds and injuries in their litigation (I Cor., vi. 1 sqq.).

(b) Those who pass judgment must have a good intention, must proceed according to law, and must decide according to prudence. If the first condition is wanting, judgment is unjust or otherwise sinful, according as the judge chooses against the right or is merely prompted by some human motive (such as hatred, anger, vainglory, avarice); if the second condition is lacking, judgment, if public, is usurped or illegal, if the third condition is not had, judgment is rash. But it should be noted that the Church has condemned the teaching of Wicliff that office and authority are forfeited by sinners (Denzinger, 595, 597).

First Condition of Righteous Judgment.—The first condition of righteous judgment is that the purpose of the judge be just and sincere. But is it possible for judgment to be righteous if the judge is a bad man—that is, if he is in the state of mortal sin?

(a) If the sin of the judge is public, and judgment is given against a sin of the same character (e.g., if a notorious thief passes sentence on another thief), serious scandal is given; for justice is discredited and an occasion offered for criticism of authority and for lawlessness. But if the sin is not of the same character as the one condemned (e.g., if a notorious thief passes sentence on a murderer), the scandal is not grave in so far as justice is concerned.

(b) If the sin is not public, it is clear that no scandal is given; and if the judge is moved by the duty of his office and by zeal for justice to condemn even the same kind of sin of which he himself is guilty, he commits no sin whatsoever in so doing (cfr. 1280). But he is guilty of hypocrisy if he uses the opportunity to pretend a personal righteousness which he does not possess. It is this that Our Lord reprobated in the Pharisees, who, although guilty of many and grave crimes, wished to put to death an adulteress in order that they themselves might thus shine as immaculate. The words, “Let him that is without sin among you cast the first stone” (John, viii. 7), condemn hypocrisy in judges, though they do not require that a judge be free from all sin. But though sinners may act against sin as lawmakers, prosecutors, judges, jurymen, police, etc., they should be admonished by their office to reform themselves according to the words of St. Paul: “In judging another, thou condemnest thyself, for thou dost the same things which thou judgest” (Rom., ii. 1).

Second Condition.-The second condition of righteous judgment is legality, if there is question of judgment in court.

(a) Thus, the judge must have public authority, for, just as laws cannot be made except by public authority, neither can they be interpreted except by the same authority (Rom., xiv. 4). Hence, proceedings that are not held in the proper place, at the proper time, or in the manner prescribed by law are void, and the same is true if a court has not jurisdiction over the parties or over the subject-matter in controversy.

(b) The judge must administer justice according to the law and the usual method observed in courts, since his office is to interpret, not to make law or custom (jus dicere, non facere). His opinions as precedents may affect the development and growth of law, and hence he is especially bound to be faithful to general principles that are binding on him. If a statute in its operation is found to impede the just disposition of controversies, judges perform a public service by indicating this to those who have authority to regulate procedure. If the application of a law would work injustice, no judge can in conscience pronounce sentence according to that law; but there are many cases recognized in jurisprudence in which courts of equity afford relief to rights that cannot be defended or protected in courts of law, and in cases of this kind the judge should be guided by recognized principles of natural justice and the rules of his court.

Third Condition.—The third condition of righteous judgment is that the sentence or decision be prudent or well-founded. Thus, in a judicial process the facts of a case must be examined and the rules of evidence be observed in judging the meaning of the facts. Since rash judgment is a sin committed, not only externally and in public, but also and especially internally and in private conclusions formed about the character or deeds of others, and since it is one of the commonest of sins, it will be well to explain its nature somewhat fully.

(a) It is an internal sin, and so it differs from external acts against the neighbor; but calumny, detraction, and unjust sentence are its outward expressions.

(b) Rash judgment is an internal sin of decision in which something is affirmed or denied mentally about a neighbor, and so it differs from a mere representation or thought. This distinction is important for scrupulous persons who think that mere suggestions against others that flash through their minds are rash judgments. These suggestions are a very common temptation, and, if repelled, are an occasion of merit; they become sinful only when entertained with pleasure.

(c) Rash judgment is a decision unfavorable to another in matters of character or honor. Thus, it differs from favorable decisions (as when without reason one holds that another is virtuous or has extraordinary merit), and from unfavorable decisions on matters other than character or honor (as when one concludes that a neighbor is mentally or physically deficient, and these defects are not connected with depravity nor considered as ignominious), and from unfavorable decisions that relate to sin but are not personal (as when one thinks that an expression used by an ignorant man is blasphemous, but passes no judgment on the state of conscience of the man).

(d) Rash judgment is a decision that expresses conviction, and not mere supposition. Thus, it differs from the prudential attitude by which one assumes for the sake of security that a stranger is to be distrusted, since he may be dishonest.

(e) Rash judgment is a certain conviction or judgment, that is, one which holds its own view as true and certain and does not consider the opposite of its view as worthy of consideration. Thus, it differs from doubt (that is, a state in which the mind is suspended between the unfavorable view and its opposite, and does not incline to one more than the other), from suspicion (that is, a state in which the mind inclines to the unfavorable view, but does not assent to it as being either probable or certain), and from opinion (that is, a state in which the mind assents to the unfavorable view as being probably true, but admits that it may be untrue). These various forms of mental reaction were treated in 654 sqq.

(f) Rash judgment is rash, that is, a belief based on insufficient authority, or an inference that is really groundless or not well drawn from premises. Thus, if one judges that one’s neighbor is a thief, because this was told one by an honest and well-informed person, the judgment is prudent; but, if one judges this on the word of a person who is unreliable or who has no knowledge of the facts, the judgment is imprudent. Again, if one judges that it is certain that one’s neighbor is a thief, because one has evidence that removes all doubt, the judgment is prudent; but if the evidence is merely probable, an opinion based on it is prudent, but a judgment based on it is imprudent. It is not rash to hold that the majority of mankind are lost, or that the present generation is not as good as the generation that preceded, if one has good reasons for such beliefs; but a sweeping and all-inclusive pessimism in such matters is unwarranted.

The reasons for a judgment may be sufficient for something else, but insufficient for the judgment actually formed.

(a) Thus, they may be reasons sufficient for judging that one kind or degree of sin has been committed, but insufficient as regards another kind or degree of sin. For example, if one breaks the lock of another’s desk, there is an argument for willful trespass, but this alone does not prove larceny or the intent to steal.

(b) They may be sufficient for doubt and insufficient for suspicion, sufficient for suspicion and insufficient for opinion, or sufficient for opinion and insufficient for judgment.

Rash Judgment.—Opinion, suspicion, and doubt are also rash, if there is no sufficient reason to warrant them.

(a) Thus, if there are no probable reasons for an unfavorable opinion, it is rash to form such an opinion. For example, the mere fact that two men have frequent and whispered conference together does not make it likely that they are plotting evil.

(b) If there are no sufficient reasons for inclining towards an unfavorable opinion or for suspending all assent, suspicion and doubt are rash. For example, the mere fact that a man enters a house when the owners are absent is no reason to suspect him of dishonest purposes, or even to have doubts, if he is of good reputation and enters the house in daylight and in a usual way.

Sinfulness of Rash Judgment.—Rash judgment strictly understood, then, is a firm assent of the mind, based on insufficient data, and given to the view that a neighbor is or has been guilty of sin.

(a) From its nature this sin is mortal, for it consists in a contempt for, and an injury to, what is regarded as one of the chief goods of man, namely, the favorable opinion of him that is entertained by others. It is denounced in Scripture as an injury to the law itself (“He that judgeth his brother judgeth the law,” James, iv. 11), and as meriting condemnation (“Judge not, and you will not be judged, condemn not and you will not be condemned,” Luke, vi. 37).

(b) From the imperfection of the act or from the lightness of the matter rash judgment may be only a venial sin, as when unfounded suspicions arise in the mind without advertence to their sinfulness, or when one rashly judges in some small matter (e.g., that another person stole a pin or a cent).

Rash judgment is not mortally sinful in an individual case unless the following conditions are present:

(a) there must be perfect deliberation, that is, full advertence to the judgment itself and to its sinfulness and gravity (see 175). There is no full advertence to the sinfulness and gravity of the judgment, however, if one does not perceive at least in a confused manner that one is deciding in one’s mind without sufficient reason that one’s neighbor is guilty of serious sin, and is thereby doing the latter a great injury. But it is not necessary that the rash judgment continue for a considerable time, for the malice depends on the evil done, not on the length of time it has lasted;

(b) there must be serious rashness, for the sinfulness of the judgment rests on its rashness. Hence, if one judges a sin to be certain which is very probable or almost certain, there is no great imprudence and therefore no serious sin;

(c) there must be grave injury and contempt, for in these the malice of rash judgment consists. Hence, if one judges that another is a drunkard and neither the latter person nor others in the same place regard drunkenness as very dishonorable, there is no great harm done. Similarly, if one judges that some indeterminate individual of a multitude or group is a rascal, or that a stranger whom one sees on the street late at night is out on an evil errand, or that an unknown party seen from a distance is on his way to a disreputable meeting, it does not seem that there is great injury done; for one does not greatly resent lack of esteem in others to whom one is not known.

Rules on Perfect Advertence to Rashness of Judgment.—(a) There is perfect advertence when one actually perceives that the reasons for one’s unfavorable judgment are very insufficient; (b) there is perfect advertence when one virtually perceives the serious insufficiency of the reasons, that is, when one could and should perceive it, but is vincibly blind to it (see 30, 31) on account of some passion wilfully indulged, such as hatred or envy of the person judged. In these cases one judges with negligence and precipitancy in a serious matter (see Imprudence).

Rules on Insufficiency of Reasons for Unfavorable Judgments.—(a) Those authorities for sin are not sufficiently trustworthy whose reliability is of inferior worth (e.g., because they are enemies of the person against whom they speak, or calumniators, or gossipers, or of bad reputation, etc.), or whose story does not merit the credence they claim for it (e.g., because the person against whom they speak is known as upright). If both the authorities for a story and the person against whom they speak are equal in good qualities, there is sufficient reason for doubts, but nothing more.

(b) Those arguments for sin are not sufficient which create for what is concluded only a slight presumption (see 658), that is, which offer facts that are never, or seldom, or not necessarily causes or effects or indications of sin. Thus, it is rash to judge that a mature man and woman conversing together in a dignified manner and in a public and open place are discussing obscene matters; or that a respectable person whose face is flushed, or whose hand trembles, or who slips on the street, has been imbibing too freely; or that a man climbing into a second story on a frequented highway and in broad daylight is a burglar. This rule may be expressed in other words by saying that reasons for drawing unfavorable conclusions are insufficient when in view of the circumstances and time, place, persons, deed, etc., no prudent person would consider the conclusions as warranted.

Rules on Gravity of Matter in Rash Judgments.—(a) From the nature of the thing ascribed to the other person, only judgments that mortal sin has been committed are grave matter; for only mortal sin is in itself a grave reproach.

(b) From the circumstances of persons or acts, rash judgment of mortal sin may be only venial; for it sometimes happens that certain kinds of serious sins are not considered very ignominious in certain persons or conditions. Thus, in some places it is considered honorable for soldiers or students to have wounded adversaries in duels; some persons of a rough kind are proud of their proficiency in blasphemy or obscenity; where drunkenness is common, it is not considered as very disgraceful.

(c) From the circumstances of persons or acts, rash judgments of venial sin or of what is not sin at all may be mortal; for to those from whom much is expected slighter defects may be causes of great disgrace. Thus, it is very dishonoring to the parties concerned to think that a prelate is an habitual liar, that a nun visits too often, that a public official is illegitimate or stupid or afflicted with syphilis, and therefore unworthy of his position.

The Moral Species of the Sin of Rash Judgment.—(a) It is a sin against justice, because it infringes the strict right of the neighbor that he be not judged guilty of evil without sufficient reason, and that he be not held worthy of contempt until he has clearly forfeited the right to respect. It is true that judgment as here taken is an internal act, and that it was said above that only external acts form the subject-matter of justice; but internal acts that are referred immediately to external acts, as concupiscence tends to lust and anger to injury, may be classed with these external acts. Hence, internal judgment naturally leads up to external judgment, and so it pertains to justice, just as the desire to steal is unjust and the desire to make restitution is just.

(b) It is a sin against charity, because it does not practise benevolence (“Charity thinketh no evil,” I Cor., xiii. 5), and is usually associated with ill-will or envy. He who judges rashly does not love his neighbor as himself, for he does not observe the rule not to do to others what he would not have done to himself.

The moral species of rash judgment is not changed according to the species of sin attributed to another (such as heresy, dishonesty, impurity), and these circumstances of the rash judgment need not be mentioned in confession.

The Moral Species of Rash Opinion, Suspicion and Doubt.—Do the conclusions given above on the theological species of rash judgment apply also to rash opinion, suspicion, and doubt?

(a) Some theologians answer in the affirmative, and argue that the same grave injury and contempt of the neighbor is found in these sins as in rash judgment, and that Scripture makes no distinction between the one and the other. On the contrary, they say, murmurings, detractions, and hatreds are caused oftener by doubts, suspicions, and opinions, since firm and certain judgments are not so often formed; and moreover there is no one who would not prefer to be judged certainly guilty of fornication than to be doubted or suspected of more heinous crimes, such as incest or sodomy.

(b) Other theologians answer in the negative, and argue that suspicion and doubt do not inflict a severe harm, since they stop short of firm decision of the mind and so are incomplete injuries which diminish rather than take away the esteem due to another. But the defenders of the affirmative reply that, while opinion, suspicion and doubt are incomplete as regards assent, they are not incomplete as regards deliberation and consent, and so can be mortally sinful, as is seen in the case of doubts against faith (see 840 sqq.).

(c) Still other theologians hold that rash opinions, suspicions and doubts are from their nature mortal sins on account of the arguments for the first opinion, but that in actual experience they are usually venial on account of the imperfection of the act (since on account of human frailty doubts, suspicions, or evil opinions of others can easily arise before they are noticed), or the lightness of the matter (for there is rarely one of these mental states without some reason that seems to be at least approximately a justification). But it seems likely that rash judgments themselves are seldom mortal sins, since the conditions for mortal sin are not often realized in them.

The Chief Reasons for Rash Conclusions about the Character of Others.—(a) A first reason is that the person who draws the conclusion is bad himself. Evil-doers are very prone to suspect others of evil, for sin seems so delightful to them that they think others must find the same pleasure in it: “The fool when he walketh in the way, since he himself is a fool, esteemeth all men fools” (Eccles., x. 3).

(b) A second reason is that the wish is often father to the thought. Thus, if one hates or envies another or is angered against him, even trifles light as air will suffice to make one judge him guilty of sin. Just as love blinds an infatuated lover to the sins or crimes of the object of his affection, so does prejudice give a distorted vision that can see nothing but evil in the object of its dislike.

(c) A third reason for rash views unfavorable to others is long experience in dealing with human nature. Thus, old men sometimes become not merely cautious, which is reasonable, but unduly suspicious. Similarly, those who have encountered many trials or disappointments in life often become cynical and misanthropic, and to them the actions of all their fellowmen appear either evil or at least spoiled by an evil purpose.

Rash Doubts.—Doubt about the probity of others is sinful, when there are no sufficient reason for it; for example, it would be unreasonable to suspend judgment about a man of excellent reputation because a well-known calumniator had spoken against him. But a doubt may be reasonable, as when a person has had a good reputation for honesty but a reliable witness declares that he is dishonest. In such a case should one decide for the innocence or for the guilt of the party called into doubt, or should one suspend judgment on the matter?

(a) It is not lawful to interpret reasonable doubts in a sense unfavorable to another person, for this would amount to rash judgment, since the reasons are sufficient for doubt but not for decision. Hence, it would be wrong to believe that a person of good repute was a thief, because another person of good repute said so.

(b) It is lawful to suspend judgment in case of reasonable doubts, if there is no obligation of deciding one way or the other, for in so doing one does no injury either to one’s own intelligence (since the doubt is reasonable) or to the honor of another person (since, as supposed, there is no obligation of judging positively in his favor). Just as there is no duty of making acts of love of our neighbor on every occasion, neither is there a duty of deciding doubts to his advantage on every occasion, or of having any opinion about him whatever. Some authors do not admit this, but the common teaching is against them.

(c) It is not lawful to suspend judgment, but the reasonable doubt must be resolved in a favorable sense, if there is an obligation or a wish to decide one way or the other; otherwise one would decide in an unfavorable sense and be guilty of rash judgment. This is what is meant by the well-known maxim that doubts about the character of a neighbor should be settled in favor of the neighbor. Hence, if one were in serious danger of forming a rash judgment and could not otherwise overcome the temptation, a suspension of judgment should give place to favorable judgment. It is true that one may be frequently in error by thus judging well of mankind, since man is inclined to evil from his youth (Gen., viii. 21) and the number of fools is infinite (Eccles., i. 15). But it is a less evil to fall into the speculative error of taking a bad man for good than by adopting another course to fall into the practical error of becoming bad oneself by violating a law of prudence, justice and charity; and it is less harmful that many sinners should receive more credit than they deserve, than that one just man should be deprived of the good opinion that belongs to him. Pseudo-Ambrose (Apol. ii, David, c. 2, n. 5) says that those who judge others rashly often become worse by this act than the persons they judge; and St. Thomas remarks that favorable opinions of others harm no one, whereas unfavorable opinions are a wrong to innocent persons.

The interpretation of doubts in a favorable sense does not mean that one may not take into consideration the possibility of danger or deception and use remedies or precautions. This course is not rash judgment, for even when one judges that another person is good, one knows that the judgment is possibly wrong, and therefore cannot be entirely relied on for external guidance.

(a) It is lawful, therefore, to act as if one did have a bad opinion of another when there is a possibility of harm that must be guarded against. Thus, a father may forbid his children to keep company with other children, for these latter may be corrupt; an employer may keep his money under lock and key, because servants may be dishonest; a traveller may carry weapons, because the inhabitants among whom he travels may be treacherous. Even though appearances are favorable, one may be on one’s guard, for appearances are often deceptive.

(b) It is not lawful, however, to protect oneself or others in such a needlessly conspicuous or offensive manner as to sadden or defame the other party against whom one takes the precautions. Thus, it would be unjust and uncharitable to go about ostentatiously locking safes and drawers whenever a certain person appeared, for this would be equivalent to saying that he was a thief.

S. Th. II-II, q. 60; and 63, a. 1.

612. Judgment is the act of a judge, or of a superior judging, insofar as he is judge; this act pertains formally and more than the others to distributive justice. For distribution includes and supposes a judgment of authority concerning the goods of the community, with the common good nevertheless preserved, to be divided among members proportionately to their dignity, or concerning guardianship or protection to be conceded to them proportionately to the quantity of their goods and rights.

A judge, etymologically, is as it were one speaking right (ius dicens), whence he is a public person instituted for this: that he may speak right to those subject to him according to the prescription of law. Hence judgment:

1. In its primary signification and most properly imports the right definition or determination of right or of the just, which is the object of justice; and therefore judgment is an act of justice. But judgment is understood according to excellence: exercised publicly with solemnity, which is done authentically by the superior of society, or in his name by him who exercises judicial power in society: "judgment is in princes and judges";

2. Secondarily, it signifies such a judgment rendered internally or privately, even by private persons, in a matter of justice, namely, concerning the life, things, rights, or morals of others;

3. The name was broadened to signify a sentence or determination of the right in any matter whatever, whether speculative or practical: for in every assent or true determination of the mind there is equality or conformity of the intellect either to the thing or to right appetite. And thus, less properly, judgment belongs to any virtue: for it pertains to any virtue to judge in its own matter, but in this way judgment is rather the determination of the right than of the just.

613. Judgment is an act of justice. Billuart proves this thus:¹

¹ Diss. VII, a. 1.

1. "It belongs to justice to define and determine that which is just or equal to another: for this is its object. But judgment in the proper sense is nothing other than the definition and determination of the just. Therefore.

2. To define rightly in the matter of some virtue proceeds from the habit of such a virtue (q. 60, a. 1), insofar as the virtue inclines the affection to its object and the intellect judges conformably to the affection, because the affection makes the thing seem suitable to the intellect; whence it is commonly said, as someone is affected, so he judges concerning things: thus the chaste man rightly judges those things which pertain to chastity. Therefore to define rightly in the matter of justice, which is to judge, proceeds from the habit of justice."

Nor should it be said that judgment belongs to reason, not to the will, and therefore pertains not to a moral virtue but to prudence. For two things are required for right judgment: "One is the very virtue pronouncing the judgment, and thus judgment is an act of reason: for to speak or define something belongs to reason. The other is the disposition of the one judging, from which he has suitability for judging rightly; and thus in those things which pertain to just judgment it proceeds from justice, as in those things which pertain to fortitude, from fortitude. Thus, therefore, judgment is an act of justice as inclining to judging rightly, but of prudence as pronouncing the judgment; whence also synesis, pertaining to prudence, is called well-judging" (q. 60, a. 1, ad 1).

Therefore judgment, insofar as it regards the just according to all circumstances, is an act of prudence; but insofar as it formally regards right as an equal due to another, which is the proper object of justice, it is an act of justice, and indeed elicited by it, because it is immediately regulated by it, no other virtue mediating.

614. Judgment is lawful (Deut. XVI, 18-20; I, 16-17; Jn. VII, 24; Rom. XIII, 4; Acts V; I Cor. V, 3 sq.), provided it is clothed with due circumstances,² which are three: 1. that it proceed from the inclination of justice; 2. from the authority of the one presiding over a subject; 3. and that it be pronounced according to the reason of right prudence. When these are lacking, judgment is called either unjust or perverse, or usurped, or rash; and therefore in the Scriptures it is sometimes prohibited (Mt. VII, 1-2; Rom. II, 1; XIV, 3 sq.; Jas. IV, 11-13).

² Thus against the Waldenses and Anabaptists, saying that it is not lawful for Christians to exercise judgment.

Judgment is validly exercised even if the judge were to condemn concerning a sin of which he himself is guilty, because sin does not take away the authority of jurisdiction (Council of Constance, sess. 8, c. Wicleff); although he can sin by graver scandal if, being a public sinner, he judges thus.

615. Observations. 1. In judgments concerning persons, doubtful things are to be interpreted in the better part, not only negatively, insofar as the worse is not to be judged but one must at least abstain from judgment, and this must always be observed, as we already said where treating rash judgment; but also sometimes positively, namely, when a positive act of judgment is prescribed to be elicited concerning the goodness or malice of one's neighbor. For each one has the right to be esteemed good, so long as his malice does not sufficiently appear.

2. Judgment ordinarily must be exercised according to written laws. For "judgment is nothing other than a certain definition or determination of that which is just. But something becomes just in two ways: in one way from the very nature of the thing, which is called natural right; in another way from a certain agreement among men, which is called positive right. But laws are written for the determination of each right, yet in different ways; for the writing of the law contains natural right, indeed, but does not institute it: for it does not have force from the law but from nature; but the writing of the law both contains and institutes positive right, giving it the strength of authority. And therefore it is necessary that judgment be made according to the writing of the law; otherwise judgment would be deficient either from the natural just or from the positive just," q. 60, a. 5.

It is said: ordinarily; it would not have to be done thus if human law manifestly contradicted the natural law, or if in the case it tended to the detriment of the common good.

616. The sin which is opposed to distributive justice and to just judgment is acceptance of persons. This name is taken from the Scriptures (Deut. I, 17; XVI, 19; Lev. XIX, 15; Eph. VI, 9). To accept a person is to look at the face (Mk. XII, 14 and Mt. XXII, 16; Ps. LXXXI, 2); whence it is so called because, with the proper motives omitted which ought to be attended to for just distribution, namely, merits, necessities, dignity, capacity, it regards other impertinent personal circumstances. Therefore persons are said to be accepted, not merits. Hence acceptance of persons (aanzien van personen) is defined: an injustice by which, in common things to be distributed from justice, attention is not given to the proportion of merits or suitability of those to whom they are given, but to some cause impertinent to this matter. It is said:

1. In things, whether good things, such as benefices, public offices, honors, judgments, etc., or bad or burdensome things, such as taxes and tolls, contributions of works, penalties, etc.

2. In common things to be distributed from justice, because in the distribution of one's own things which one is not held to give, or not held except perhaps from liberality or from charity, there is no acceptance of persons, even if one does not attend to the merits or suitability of those to whom he distributes; for example, to give alms to someone because he is a friend: for anyone without injustice can give from his own as much as he wishes and to whom he wishes. Hence there is no acceptance of persons if God distributes graces unequally (Mt. XX, 14-15; Rom. IX, 14 sq.).

3. Attention is not given to the proportion of merits or suitability: for if someone considers that property of the person on account of which that which is conferred upon him is due and proportioned to him, there is not acceptance of person but of cause; for example, to promote someone on account of knowledge. But if someone considers in him to whom he confers something, not that on account of which what is given is proportioned or due, but only this, that he is this man, there is acceptance of person, because it is not given on account of the cause, but is simply attributed to the person.

Therefore to the person is referred whatever condition does not make for the cause on account of which someone is worthy of this gift; for example, if someone promotes another because he is rich or related by blood.

617. Acceptance of persons is opposed directly and per se to distributive justice, because distributive justice consists in this, that diverse things are given to diverse persons according to proportion to the dignities of the persons; but in acceptance of persons action is taken apart from proportion. Nevertheless it can also be opposed not only to legal justice, insofar as it harms the common good, but sometimes by accident to commutative justice, insofar as it injures the strict right either of society, for example, by naming incapable ministers, or of private persons, for example, in the distribution of goods which are primarily destined to certain determinate persons, such as the poor, who then have a right to the thing.

Moreover, from its genus it is a mortal sin, both because every injustice from its genus is grave, and because distributive justice is more excellent than commutative justice, as being nearer to the common good and to legal justice, and because no less damage follows from unjust distribution than from commutation. Nevertheless it can be venial from lightness of matter, as if in a small matter, for example, in a place for sitting, one less worthy is preferred to one more worthy, or if there is a small discrepancy between the less and the more worthy, or among the goods distributed.

(D. Thomas, IIae IIae, q. 60.)

Judgment, as taken here, is the definition or determination of right or of the just ; but the just, as appears from what has been said, is the equal owed to another, which is the object of justice³²⁵. From which it is clear that it is an act of justice, because it belongs to justice to define and determine what is just and the equal owed to another. ³²⁵ Hic q. 60, a. 1, o.

We treat therefore of judgment taken in this sense, not only as it is exercised outwardly by a judge between litigating parties, but also as it is exercised, whether outwardly or inwardly, by private persons concerning the life, goods, and morals of others.

I say: Judgment clothed with due circumstances is licit³²⁶. It is against the Waldenses and Anabaptists. ³²⁶ Ibid., a. 2, o.

Proof. 1° from the Scriptures. Deut., XVI, 18, God says to Moses : Thou shalt appoint judges and magistrates in all thy gates,... that they may judge the people with just judgment³²⁷. ³²⁷ Ibid., in arg. Sed contra

And chap. 1, 16 : Judge that which is just. Which Christ repeats, John, VII, 24. The Apostle, to the Romans, XIII, 4, asserts that not without cause does the judge carry the sword ; for he is God's minister, an avenger in wrath upon him who does evil. Peter judged Ananias and Saphira, Acts, V, 3 ; Paul the incestuous Corinthian, 1 Cor., V, 3.

Proof. by reason. Every act of virtue is licit. Now judgment clothed with due circumstances is an act of virtue, namely of justice, as was said³²⁸. Therefore. ³²⁸ Ibid., o.

I said, « clothed with due circumstances », which are three³²⁹ : first, that it proceed from the inclination of justice ; second, that it proceed from the authority of the one presiding ; third, that it be uttered according to right reason and prudence. The first condition can be understood in a twofold sense : first, that judgment not be against justice ; second, that it be from love of justice, and not from some human motive, say hatred, anger, avarice, vain glory, etc. Through defect of the first condition understood in the first sense, judgment is perverse and unjust. Through defect of the same condition understood in the second sense, it is not properly an unjust judgment, yet evil and illicit gravely or lightly according to the quality of the motive. Through defect of the second condition, it is usurped judgment. But this regards public judgment ; since justice is found in private persons, there can be in them also true and right judgment without authority. Through defect of the third condition, it is rash judgment, namely when someone for light reasons judges doubtful and hidden things. ³²⁹ Ibid.

You have the various significations of IUDICII in Navarro supra Rubricam de Iudiciis, and in Valentiam disp. 5. quaest. 4. puncto primo.

The name of Judgment signifies MANY things. First it signifies the definition of that which is Just and equal among some, connoting at the same time a certain power of compelling the parties to the execution of the right defined. Such judgment is the sentence of a judge. Whence he is called Iudex whose it is to judge according to the laws, which in Greek is δίκαιος from δικάζω, as Valentia notes with D. Bonav. in 1. dist. 45. parte 1. dub. 1. litt. Therefore indico is ius dico.

SECONDLY by Metaphor it has been transferred to signify that which has been judged by a judge, as Ioan. 5. They who have done evil shall come forth into the resurrection of judgment. And prima Cor. 11. He eats and drinks judgment to himself. Therefore it chiefly expresses condemnation, as S. Doct. indicates in 4. dist. 18. p. 1. dubio secundo.

THIRDLY in the same way it also signifies, in a certain way, things pertaining to judgment, as the tribunal. Thus Judgment is divided into Secular and Ecclesiastical cap. Quanto, extra de Iudiciis.

FOURTHLY it signifies any definition of the intellect, in what manner it is said to pertain to Synesis, which is a part of potential Prudence, and it ought to be regulated to truth, as S. Doct. teaches dist. 25. citata, secundo sent. dub. 1. But this is twofold, Speculative and Practical, as D. Bonav. teaches in 2. dist. 23. quaest. 2. ad 2. et dist. 7. p. 2. quaest. 1. in corpore.

FIFTHLY it signifies that sentence of the intellect which is made concerning the probity of another, concerning which Matth. 7. Judge not, and you shall not be judged.

But this SENTENCE is from the will commanding, whose it is to judge. Therefore free choice also is defined as the judgment of reason, because in the free act, especially of judging concerning the probity of another, reason intervenes, and the judgment or decree of the will, as S. Doctor observes loc. cit. Secundi sent.

But S. Doct. OBSERVES in 1. dist. 3. p. 1. quaest. 1. ad 4. that to judge concerning something is twofold. The first, by discerning whether it is, or is not; and in this way judgment belongs to every intellect knowing with respect to every object. The second, by approving or reproving; and thus it does not judge concerning truth, but according to it concerning other things, as D. August. says de vera Religione, cap. 31. that a judge does not judge concerning the law, but according to it judges concerning other things, and in this way one judging exercises the judging power, and the Right over the judged. Therefore this judgment is reserved to God, but not conceded to us, as Matth. loc. cit. says and Paulus Galatas 6. Therefore do not judge before the time, until the Lord come.

In almost this manner he says three things of JUDGMENT. First the collation of merit or demerit to reward or punishment properly. Secondly he adds the discussion of merits and the pronouncing of sentence. Thirdly it is called, appropriately, condemnation itself, as S. Doct. notes in 4. dist. 47. art. 1. quaest. 3. in resol. Therefore we are prohibited from judging, that is, from condemning anyone, even privately, after the merits and demerits have been discussed, because this pertains to the judgment of God, as S. Doct. teaches ibi, et in Diaeta, tit. 9. in finem, citing that prima Corinth. 4. Elucidating which passage S. Doct. in Appendice Diaetae Dom. 4. Advent. says: The Law of the Emperor says, the lesser power ceases. Therefore the Apostle, considering the advent of the eternal judge, restrains it, saying: Judge not, etc. and in speculo animae, cap. 1. after he has said: suspicion is an evil opinion from slight causes, and this proceeds from the evil affection of envy; and then it has the notion of mortal, but otherwise it is not judged mortal; he adds: Judgment is perverse when one, ill affected toward another, not only suspects evil in him from slight causes, but also defines in heart or mouth, in the manner of a sentence, that mortal sin is committed by someone, and this of its genus is mortal, from whatever root it proceeds. Whence the Gloss on that, prima Cor. 4. Do not judge before the time says: We cannot avoid suspicions, because we are men; but judgment, that is, definitive sentences, we ought to guard against. But this judgment is always a sin too grave. This S. Bonav. says, and p. 3. Stimuli, cap. 8. he adds the reason why these judgments are forbidden to us, from the Apostle Rom. 14. Who art thou, that judgest another man's servant, and he repeats again: Do not judge before the time, until the Lord come, namely, because our neighbors are not subject to us in the forum of conscience, but to the Lord, and in the Sacrament, to His Ministers.

MOREOVER, if Judgment be right, it will be an act of Justice: But it will be right, if the due equality is established, both by a public Judge in the Tribunal of the Forum, and unto condemnation; and by anyone in the private judgment of conscience, namely, when in practice one judges according to that which is established to us, yet not unto condemnation, as S. Doct. warns opusc. de profectu Relig. cap. 1. Therefore what pertains to establishing the true pertains to prudence; but what pertains to establishing equality in order to the reputation of our neighbor, to which each one has the right of defending, will be an act of Justice, as Valentia declares loc. cit. But the Judgment which can be made privately by us concerning the inexcusable probity of our neighbor pertains to Prudence, not to Justice, because it does not pertain to us to speak the right concerning the crimes of all others. See also Tannerum disp. 4. quaest. 3. dub. 1.

IN this matter it is certain, first, that among Christians there can be just Judgments, against the error of the Waldensians and the Anabaptists, as Tannerus warns, disp. 4. quaest. 4. dub. 1.

IT IS PROVED

IT IS PROVED at length by the Saintly Doctor, p. 2. de Eccles. Hier. cap. 2., where the Saintly Doctor shows that Judges and Princes ought to be like the supernal Virtues, so that they may judge rightly. He brings forward several Scriptures on this point, 1. Reg. 14., where of King David it is said: But you, my lord the King, are as an Angel of God, who is moved neither by blessing nor by cursing. From this he deduces that the Judge must be strong, in order to judge rightly. Therefore Eccles. 7. Do not seek to be made a Judge, unless you have the strength to break through iniquities, lest perhaps you fear the face of the mighty. Sap. 6. Hear, O Kings and Judges, who judge the earth: to you is Power given by the Most High. The same is found in Psalm. 2. in the New Testament: Be instructed, you who judge the earth. Therefore in Exodus 32. rules for judging are given to the faithful: You shall not accept gifts, etc., and Deuter. 16. You shall not respect persons nor accept gifts, for they blind, etc. Second Paral. 19. See what you do: for you do not exercise the judgment of men, but of God. Isa. 1. Judge for the orphan, help the oppressed.

THUS David judged, 1. Reg. 30.: David rescued all that the Amalekites had taken, nor was anything missing from the spoils: but all things whatsoever they had seized, he brought back and restored. And 2. Reg. 22. Whom he shall repay fourfold, where he is called by the holy prophet to judge. And Solomon, 3. Reg. 3., judged — while he was holy — over those two little harlots concerning the stolen child. Many other passages from the Scriptures the Saintly Doctor brings forward in the Biblia pauperum, cap. 50. also for the law of grace.

THESE he also pursues at length ad cap. 6. Sap., in these words: Power has been given to you by the Lord, and strength by the Most High, who will question your works; for, though you were ministers of his kingdom, you did not judge rightly, nor keep the law of justice. Where he adduces that Rom. 13. There is no power but from God; Ioan. 19. You would have no power against me unless it had been given you from above. That Isa. 1. They do not judge for the orphan, and the cause of the widow does not come to them. The same he laments, Hierem. 5.

THE SAME authorities the Saintly Doctor pursues at length on that Ioan. 19. You would have no power, etc., where in the New Testament the power of judging is asserted by Christ, and by the Apostle, Rom. 13., and by St. Peter.

THE SAME he pursues in serm. 22. Hexaëmer., where he observes that it was promised in Isaiah, chapter 1: I will restore your judges as they were at the first: after this you shall be called the city of the just, the faithful city of Sion; she shall be redeemed in judgment, etc. Whence it follows that judgments erected in the Old Testament were not destroyed in the New, as regards power.

THEREFORE Paul also appealed to Caesar, Act. 25. and 26., and therefore, together with Peter, he exhorted the faithful to submit to the judgment of Princes, Rom. 13. Let every soul be subject to the higher powers, etc. For he does not carry the sword without cause: for he is God's minister: an avenger into wrath upon him who does evil, as the Saintly Doctor shows in 2. dist. 44. art. 3. quaest. 1., and in the first Epistle of Peter, 2. Servants, be subject to your masters, not only to the good, but also to the froward, etc. Therefore in the first Epistle to the Corinthians, 6., Paul praises judgments.

IT IS PROVED more fully by the Saintly Doctor in Hexaëmer. serm. 16. from the constant usage of the Church from the times of the Apostles onward; for St. Peter condemned Ananias and Sapphira, Act. 5., and in the following centuries there were always ecclesiastical and secular judgments in the Church, as is shown in the Tract. de Legibus, and p. 1. Tract. 1. Disputationibus Prooemialibus. These are confirmed by the ancient monuments of Councils, histories, and Decretals. Only this was most constantly provided: that ecclesiastical judgments should be held among ecclesiastics, as appears in the Decretis; and secular judgments among the faithful, if they could be held, as the Apostle teaches, prima Corinth. 6.

IT IS PROVED thirdly by the Saintly Doctor, in 2. dist. 44. art. 2. quaest. 1. ad 1., by the most solid argument of St. Peter, prima cap. 2., where, having described the state of the holy liberty of the New Testament, he concludes: Be subject, therefore, to every human creature for God's sake: whether to the King, as excelling: or to governors, as sent by him to punish malefactors, but for the praise of the good: for so is the will of God. From this the reason is drawn out, which he magnifies against the fourth argument of the following quaestio, and which Valencia uses, disp. 5. quaest 4 punct 2.: What is useful and necessary by natural law for the good of the commonwealth is not abolished, but established by the decrees of the Christian Religion; for Religion does not destroy, but perfects, the law of nature. But judges and judgments are necessary for the Christian commonwealth: Therefore. The minor is proved by the example of all nations, and from God's ordinance, Deuter. 16. Judges and Magistrates you shall constitute, that they may judge the people. Then the minor is evident: for if there were no judges and judgments by which the disputes of men would be terminated, and punishments assigned to crimes, and rewards to rightly performed political works, the greatest disturbance and overthrow would appear. With this reasoning he argues at greater length in p. 2. de Ecclesiastica Hier. cap. 2., as I shall say below.

NOR do the heretical adversaries lean on a firm foundation.

THEY OPPOSE, indeed, Matth. 5.: If any one will contend with you in judgment and take away your tunic, give him also your cloak.

THE SAINTLY DOCTOR ANSWERS on this passage, Lucae 6., that judgments are not forbidden; but contentions and quarrels, and the lust of vengeance, as St. Augustine says, epist. 5. Therefore, in sum, it must be held (says the Saintly Doctor) that the correction of a neighbor, or the hindering of evil, or the punishment of a crime committed by one who can and ought to hinder it — such as the Minister of the law — is not forbidden; but here the lust of revenge is forbidden and restrained, both as to the hand, and as to the sign, and as to the mind. In the same way St. Augustine says it is to be understood of what he said there also: And whoever shall strike you on one cheek, offer him the other also, and yet he himself, Ioan. 19., corrected the striker and did not offer the other cheek: similarly Paul, Actorum 23., struck on the cheek, answered: God shall strike you, you whited wall, and yet both were most patient in spirit, as the Saintly Doctor observes, loc. cit. ad locum Ioan., from St. Augustine, tract. 113. and epist. 5. — see him. Thus answers Valencia, disp. 3. quaest. 16. punct. 1. col. 742. and disp. 5. quaest. 4. p. 2., and Tannerus in the cited place.

THEY OPPOSE, secondly, Matth. 7.: Judge not, that you be not judged.

THE SAINTLY DOCTOR ANSWERS, p. 1. Concil. sect. 10., from St. Augustine, lib. 2. de serm. Domini in monte, cap. 28., that not every judgment is forbidden; but one rashly passed without firm reason. The same is the judgment of St. Hilar., Can. 5. in Matth.

THE SAINTLY DOCTOR ANSWERS, de septem Itineribus aeternitatis, Itinere primo, dist. 4., from St. Jerome, that the order of correction is taught, so that first, judging ourselves, we amend ourselves, casting the beam out of our own eye, before we contemplate the mote in another's eye.

THAT indeed he does not condemn every judgment is found in Ioan. 12.: Judge not according to the face, but judge just judgment, as St. Bonaventure there observes.

THEY OBJECT also from the first Epistle to the Corinthians, 6.: Brother contends with brother in judgment: and that before unbelievers? Indeed already altogether it is a fault in you, that you have judgments among yourselves.

IT IS ANSWERED, not that judgment is condemned, as I said above — indeed it is instituted; but that an undue one is reproved. Four conditions, however, are laid down by the Doctors that a judgment be just: thus St. Thomas, 2.2. quaest. 60. art. 1. and 6.; St. Bonaventure, in 2. dist. 44., in the cited places, and lib. 1. Pharetra, cap. 45.

T H E F I R S T is legitimate authority, such as ordinary Judges have, or Delegates, or even Arbitrators, who have that power by the law of nations over those who freely commit themselves to them. And such also would be one who, by a special judgment of God, fulfilled that office, as Phinees, Numer. 25., slew the Madianite and the Hebrew man, as the Saintly Doctor notes in the Biblia pauperum, cap. 51.

Because of the lack of this condition a Judgment is said to be unjust by usurpation, as St. Thomas says, art. 6.; St. Bonaventure, 2. dist. 44. art. 2. quaest. 1.

Y E T it can happen that the judgment of some Tyrant, who truly lacks legitimate power, be otherwise just and bind, namely if he be in peaceful possession. For otherwise the peaceful state of the commonwealth could not stand, unless what the ruler justly decreed is obeyed: Thus Valencia, punct. 2., who says that Victoria is held to have thought so, and it is the opinion of St. Bonaventure in the cited place, in the body and ad 2., where he teaches that the Tyrant, although he rules without legitimate power, and accordingly decides unjustly by reason of usurpation, must nevertheless be heard, if he decide justly, for the punishment of malefactors and the praise of the good, as is said in the first Epistle of Peter, 2.; and accordingly his decrees are just, and it is just to subject oneself to them.

T H E S E C O N D condition is, that the Judgment be conformed to the rule of Justice, namely, that what is decreed be just, even if the judge does not act from the virtue of Justice; but from the political rule, lest he be deprived — such was that Judge, Luc. 16., who finally sanctioned what was just for the Widow out of fear of punishment; as Valencia observes after St. Bonaventure on that passage. By the lack of this condition, the Judgment is said to be unjust, and it does not bind in conscience, as Innocent and Panormitanus teach, in cap. Plerique, extra de immunitate Ecclesiae; Sylvest., under the word Sententia, quaest. 11.; Sotus, lib. 3. de Iustitia, quaest. 4. art. 2.

¶ T H E T H I R D condition is the due judicial order: citation, hearing of the Accused, defenses, etc.

T H E F O U R T H condition, that he judge from the affection of Justice. So all the Interpreters of St. Thomas, quaest. 60. art. 2.; Suarez, 3. p. Tom. 5. disp. 4. sect. 7.; Tannerus, in the cited place.

Note, however, that this condition does not render the judgment invalid, as the cited authors warn. But an order failing in essentials renders it null. But of this there will be a sub-disputation.

A F I F T H condition is added: its conformity with the rules of Prudence. Now for this it ought to have two conditions: one, that it decide with due consideration; the other, that it not be from a depraved affection of hatred, or some other affection, or of gifts, etc.

¶ I T O U G H T also to be asserted that a Judge does not straightway lose his power because he lies in mortal sin, against Wicleph, whose error is condemned in the Council of Constant., sess. 8.

I T I S P R O V E D at length by the Saintly Doctor, in 2. dist. 44., where Peter, prima cap. 2., commands obedience to Masters, even to the froward. Iob 34. He makes the Hypocrite to reign. Osee 13. I will give them a King in my wrath. Ioan. 19. You would have no power unless it had been given you from above. The Saintly Doctor adduces examples of these in the Biblia, cap. 102. For thus of Nabuchodonosor it is said, Danielis 4.: Your power reaches to the ends of the whole earth. The same is asserted in cap. 5.; and to Ieroboam, 3. Reg., the Lord gave the kingdom of Israel, and to other wicked men, as the Saintly Doctor observes in the cited place. And Matth. 22.: Render to Caesar the things that are Caesar's. Now Tiberius was impious, which the Saintly Doctor elegantly discourses upon in serm. 5. Dom. 22. post Pentecosten.

T H E R E A S O N also is that of St. Bonaventure which Valencia uses: because the foundation of jurisdiction is not the grace of God, but his will in the order of political governance, and often also for the punishment of peoples, as he discourses in 2. dist. 44. art. 2.

§ 2. The Judiciary.

243. The task of the judiciary is twofold:

1. To settle disputes between rival claimants: this is done in the civil courts.

2. To prosecute, in criminal courts, persons charged with violating the law, and, in case of their conviction, to award the penalty appointed for the transgression. The settlement of civil disputes is often submitted by the disputing parties to arbiters chosen by themselves. An arbiter differs from a judge in this, that the latter acts in virtue of the sovereign power of the State, and, therefore, possesses authority over the parties concerned, while an arbiter has no rights in the matter under dispute except such as are conceded to him by the litigants. From the decision of the lower courts appeal may be made in important cases to higher courts. But there must be, in the nature of things, a supreme court from whose decision there can be no appeal. Though even this higher tribunal may err, nevertheless the public good requires that its decisions shall be final.

244. The courts are guided by existing laws, the expediency of which is no matter for their consideration; their work is the interpretation and application of existing laws to special cases. Yet certain courts are sometimes called upon to decide whether a given enactment is truly a law, whether it has all the requirements of a just law (No. 81). If an enactment is evidently unjust or is openly at variance with the Constitution of the country, it is not a law, and judges cannot justly enforce it.

245. The preservation of public order, one of the primary functions of civil society, necessitates the punishment of social crimes. Now, a social crime is an outward disturbance of civil society by the violation of a strict right of our fellow-men. Evil acts in which injury is done to those persons only who freely take part in them, do not violate a strict right of any man, and are, therefore, not subject to the punishments of civil authority.

It is for the legislative power to appoint the punishment of crimes, for the judiciary to award the punishment in individual cases, for the executive to inflict it, or, in exceptional circumstances, at the discretion of the official holding the necessary authority, to remit or commute the penalty.

246. Thesis VIII. Civil society has the right to punish social crimes.

Proof. Every natural society has a right to those means which, in the ordinary course of events, are necessary for it to obtain its ends; but the punishment of social crimes is such a means for civil society. Therefore civil society has the right to punish social crimes.

247. Let us consider how and why such punishment is necessary in order that civil society may attain its end.

1. That end is the maintenance of social order. To secure this, it is necessary that advantage and pleasure be consequent on the observance of order. But the criminal disturbs the order of things by seeking to make advantage and pleasure consequent upon disorder. Accordingly, justice requires, for the restoration of right order which he has disturbed, that he shall lose advantages or feel pain. For this purpose, then, various kinds and degrees of punishment are needed to match the various kinds of evil doings and the various grades of guilt. Hence, one purpose of legal punishment is expiation.

2. The end of civil society is likewise to guard rights from violation; but this cannot be done unless offenders be punished in a manner to deter others from following their evil example; the penalty should, for this purpose, be proportioned to the crime.

3. The criminal himself needs correction, i. e., by the bitter medicine of pain he is to be induced to give up his vicious practices, and kept from disturbing the social order in the future.

248. Thus a threefold reason exists for the infliction of legal punishment; it is expiatory, deterrent, and medicinal. In domestic society, punishment is primarily medicinal for the correction of the offender, yet at times it may be deterrent for others. In civil society, punishment is chiefly expiatory and deterrent, and it need not be medicinal.

249. Thesis IX. Civil society has the right to inflict the death penalty for enormous crimes.

Explanation. We know from Revelation that God has bestowed this right upon civil authority; we maintain here that it belongs to civil society by the principles of natural reason.

Proof. The means employed by civil society must be sufficient to attain its end. Now, in many cases, nothing less than capital punishment is sufficient to attain that end. For, (a) There are criminals so depraved and so indifferent to other forms of punishment that the death penalty alone can deter them from committing enormous crimes. (b) Some crimes, such as deliberate murder, treason, or parricide, disturb social order to such an extent that capital punishment alone approaches a proportionate atonement.

250. Objections:

1. Man is too noble a being to be slaughtered as a warning to others. Answer. Such certainly he is if he has done no wrong; not, however, if he has degraded himself by a monstrous crime.

2. The present doctrine would justify "Lynch law," and mob violence, which are evident evils. Answer. A mob has no authority to inflict death: civil society receives such authority from God, its founder.

3. Every man has an inalienable right to his life; therefore the State cannot condemn him to death. Answer.

When we say that a right is inalienable, we mean that no one can take it away except God and one delegated by Him for that purpose; now the State has a commission from God to inflict the death penalty for enormous crimes.

4. In some States the death penalty has been abolished; therefore it is not necessary. Answer. That consequent does not follow from the antecedent. It is not clear that the purposes of civil government are sufficiently attained in those States. If they are, it is owing to special circumstances, and constitutes an exception to a general rule.

5. Desperate men are not restrained by fear of the death penalty. Answer. Nevertheless it is the most potent restraint that the State can use; besides, such men are prevented by the prompt infliction of the penalty from multiplying their enormities. Moreover, few criminals have been found so hardened as not eagerly to desire a commutation of capital punishment to imprisonment for life.