The Collision of Duties and Rights

205*. Notions. To duties on one side correspond rights on the other side, and indeed in such a way that the right of one extends as broadly as the duty of the other.

1. Duties, according to the diversity of laws from which they arise, are:

a. affirmative duties, which arise from precepts, and negative duties, which arise from prohibitions;

b. absolute duties, which oblige simply and without exception, and hypothetical duties, which oblige only under certain suppositions;

c. natural duties, which are founded in the law of nature, and positive duties, which are founded in positive law, whether divine or human;

d. higher and lower duties, according as they refer to preserving greater or lesser goods, to averting greater or lesser evils;

e. duties of justice, from whose violation an obligation of restitution of itself arises, and duties of charity, from whose violation an obligation of restitution does not arise.

2. Since rights cohere with duties, they are distinguished in the same manner as duties; specifically these are to be noted:

a. connate rights, which are founded in the law of nature, and acquired rights, which are founded in positive law or in contracts.

b. inalienable rights, which can in no way be renounced, and alienable rights, which can be renounced: for what is necessary for man either for attaining the ultimate end or for fulfilling a moral obligation cannot be abdicated.

3. Collision of duties is the concurrence of several obligations which cannot be fulfilled at the same time.

Thus in the case of an unjust aggressor, two obligations collide: preserving one's own life and preserving the life of another. Since the obligation of preserving one's own life is more excellent, the other obligation loses its force.

a. So many and various are the relations of man, whether toward God or toward himself or toward other men, and consequently so manifold are the obligations which arise from them, that not rarely duties which are opposed to one another urge at the same time. But the collision of duties is only apparent, because of the colliding obligations only one in reality exists and requires that it be fulfilled; the rest lose their force or are suspended as long as the collision lasts: for their fulfillment is impossible; but no one is bound to the impossible. Certainly the supreme reason of all obligations is the will of God; but God, whose will is wisdom, cannot wish that at the same time we place actions of which one excludes the other.

b. Wherefore in a case in which duties collide, this is chiefly at issue: that the collision be solved, or that it be determined which obligation among the colliding ones, while the others cease, requires that it be fulfilled. Several rules are established for determining this.

205**. Rules for solving collision. The supreme principle in this matter is this: a higher obligation is to be preferred to a lower; but that obligation is judged higher which arises from a law which is of greater moment. Hence the following rules are inferred.

a. Precepts of the law of nature are to be preferred to precepts of positive divine law, these to precepts of positive human law; among these latter, precepts of ecclesiastical law prevail over precepts of civil law, which is drawn from the diverse end of these laws, one of which is nobler than the other.

The law which requires that we aid a needy neighbor is higher than the law of abstaining from servile works; the law of preserving health is to be preferred to the law of fasting or abstinence.

b. Negative precepts prevail over positive precepts; therefore in general the obligation of avoiding prohibited things is greater than that of doing prescribed things: for that which is prohibited is evil and pernicious in itself; but that which is prescribed is simply fitting and useful.

It is not lawful to lie nor to exercise a shameful business in order to aid one in need.

c. Precepts of justice in general prevail over precepts of charity.

If at the same time the obligation of paying a debt and of giving alms concur, the former, which is of justice, prevails over the latter obligation, which is of charity. Nevertheless, if someone must pay a debt by which, once paid, the debtor casts himself into grave necessity, he can defer payment, although it is an obligation of justice.

d. Precepts (negative and positive) which protect greater goods prevail over laws which protect lesser ones; therefore precepts which refer to spiritual goods, internal goods, common goods, are to be preferred to precepts which refer to bodily, external, private goods.

Thus a citizen is bound to serve as a soldier, even if his own life or his own family suffers damage. - A priest or physician is bound to help the sick, even if his own health or his own family is endangered. - It is not lawful to defect from the faith in order to preserve life; nor to deny the faith in order to avoid persecution. - A servant for whom service is an occasion of sin which can be removed by no means is bound to leave the service, even if the temporal damages would be most grave. - It is not lawful to expose life to danger on account of some slight temporal good.

e. But if in a case of colliding duties, after diligent examination, it cannot be determined which obligation prevails, and at the same time the necessity of acting urges, the choice can be made at will. An error which perhaps is committed in this case is involuntary and is not imputed to the agent.

S. Th. II-II, q. 59, a. 3.

From the notion of injury handed down, certain general principles of right can easily be understood by which injury may be discerned, and in what precise sense they are to be interpreted.

245. Principle I and principal: To one knowing and consenting, neither injury nor deceit is done (reg. 27 in VI of law). — St. Thomas, art. 3, shows this almost thus:

Just as no one per se and formally does an unjust thing unless willing, so neither does he suffer it unless unwilling. For action as action proceeds from the agent himself; passion as passion is from another; hence the same one cannot be agent and patient under the same respect. Now the proper principle of acting in man is the will, and therefore properly a man does what he does willingly; otherwise the human action would not be from him as agent; — and properly he suffers what he suffers contrary to his will, otherwise he would suffer from himself willing and acting, and under the same respect he would be patient and agent; all of which things are repugnant. Therefore properly, per se and formally, no one can do an unjust thing unless willing, nor suffer one unless unwilling. — Yet accidentally and materially someone can either do an unjust thing unwillingly, if he works beyond intention, or suffer one willingly, as when someone gives more to another by his own will than he ought.

Therefore "if we speak formally, someone can do an unjust thing intending to do an unjust thing, and yet another will not suffer an unjust thing, because he wills the unjust thing; — and conversely someone can suffer an unjust thing, if unwillingly he suffers that which is unjust, and yet he who does this in ignorance does not do an unjust thing formally but materially only" (ad 3).

But lest the aforesaid axiom be understood wrongly, it must be noted that not any consent whatever on the part of the owner suffices so that formal injury is not had. Therefore:

1. Knowledge must be immune from error which, if it were recognized, would of itself hold one back from giving consent.

Thus he suffers injury who in the purchase of a defective thing consents but errs through deceit or fraud, and perhaps even through simple ignorance of it. Likewise he inflicts injury who obtains money from him whom he has falsely persuaded that he has rendered him an office of great moment.

2. Consent must be full on every part, namely:

a) on the part of the motive, altogether voluntary and free, and in no part involuntary, mixed with no involuntary element; hence the consent which someone gives unwillingly, or which is extorted through violence or fear, does not suffice: for insofar as he in some way does not will and does not consent, he has that from which he suffers, whence injury can be done to him.

Thus the traveler lacks due liberty who, from fear of death, hands money to a robber; or the workman who, compelled by necessity, accepts a wage less than what is due from justice; or the needy man who borrows money but with usurious interest.

b) on the part of the will, not merely permissive, by which one tolerates the injury, but positive, which really admits it.

Thus the martyr, who by suffering injury tolerates and remits it, or desires reproach, does not by that very fact yield from his right, but an act is required by which he positively abdicates it;

c) on the part of the object, which yields the whole and every right: for insofar as he does not yield, or even cannot yield, to that extent injury subsists.

The consent is not full of him who consents to be killed in a duel, or of the husband who consents that another abuse his wife by adultery, or of the cleric who renounces the privilege of the canon: for the rights of which there is question he cannot fully renounce, since he does not have full dominion over them. In such a case perhaps a man can renounce the right, or at least its use, insofar as it is on his own part, and if he does this, under this respect injury is not done to him formally, because he no longer suffers; but he cannot renounce the right insofar as it is on the part of God, of others, of the Church, or of the republic, to whom injury is always inflicted.¹

¹ Many moderns are accustomed to say that these rights can in no way be renounced, and that the renunciation is invalid; hence they are accustomed to limit the principle to one consenting as to rights which he can abdicate. Certain unnamed authors already held this in the time of Lessius, of whom he says: "Certain doctors have limited this rule to those things in which by natural right we can yield, as in reputation and honor and other external goods of which we are masters. For in these, to one knowing and willing injury is not done, because since these are subject to our disposition, by the very fact that we will to be despoiled of them we deprive ourselves of our right and place it at another's judgment. It is otherwise in other things of which we are not masters but only guardians, as in life and the integrity of members, in a spouse, in offspring, and like things in which we cannot yield from our right. For in these, injury is properly done to him to whom these things have been entrusted or to whom they are bound, if they are destroyed or injured, even if this is done with him willing.

But that which we have said is more consonant with the accustomed manner of speaking: for no one who willingly has been injured in body by someone, or has given his spouse to be violated by another, will be able to say that injury has been done to him or to complain of injury (the radical right cannot be lost, but the use of the right can be renounced). — Then the doctrine itself is Aristotle's, Eth. V, c. 9, where he shows that no one suffers injury spontaneously, even if he can spontaneously be injured and affected by damage, because for that it is required that he suffer unwillingly. Nor does he understand this only in those things which are subject to our disposition, as in reputation and riches, but also in others in which we cannot yield from our right, as in life and members; this is clear from the beginning of the chapter, where in Euripides he adduces the example of the one who kills his mother when she is asking and willing.

It is confirmed. For no one can do injury to himself or receive injury from himself for this reason: because he cannot suffer unwillingly from himself. For it cannot happen that someone wills to inflict damage on himself and at the same time does not will to suffer it from himself. St. Thomas teaches the same, q. 59, a. 3, ad 2.

Nor does it stand in the way that someone in those things cannot yield his right, and therefore that right which he has, that he not be injured in them, remains; because it remains only materially: for just as there can be material injury on the part of one ignorant, so also on the part of him upon whom it is inflicted. Yet there can be formal injury in respect of a third party who does not consent." Thus Lessius, De Iustitia et Iure, l. III, c. 7, dub. 2, n. 13.

This can be confirmed from Vermeersch: "a. Nothing is repugnant to the supposition that the will by which injury is admitted is a command or consent such as the principal author of an action is accustomed to have, suppose that you command another to kill. Now the principal author of an action must participate in every guilt of the action, and therefore in the malice of injury, if there was any. Yet from another source it is clear that no one can do injury to himself...

b. The right does not actually remain beyond the extent to which the reason of the right is borne, which is that the personal independence of man be preserved. But this is plainly preserved, so long as the property of a man somewhat unwilling is protected; yet it remains intact through every action to which someone has freely consented... Therefore an action of this sort is not opposed to an actually remaining right," Quaestiones de Iustitia, q. 4, c. 2, a. 1. Cf. also Billuart, diss. 6, a. 2. — The proposition 57 condemned by Innocent XI is objected. Resp.: In order that the condemnation be avoided, it is enough to affirm that adultery, even in this case, is against the good of offspring and of the sacrament; and from these heads differs in species from fornication, so that the circumstance of adultery must be declared in confession.

246. Principle II. To an owner who is irrationally unwilling, injury is not done. — An owner is not judged reasonably unwilling when he is held not to be unwilling or to consent, and indeed from a strict and rigorous debt. For if the owner is obligated by charity alone or by moral debt, the thing is not strictly and perfectly owed to the other, but only imperfectly; and therefore it cannot be strictly and rigorously exacted.

And although he who does not observe charity does not act reasonably, nevertheless he does act reasonably in this, that he wills that the other not seize it while he himself is unwilling.

247. Principle III. Unjust intention alone does not constitute injury. — For injury requires not only the mind of harming, or internal will, but also an external unjust work, or one injurious to right. Hence an unjust intention does not make injury, unless it truly causes an external unjust work, and unless that arises from the real influence of a voluntary action of itself causing an injury of right. Hence:

1. Intention alone cannot determine an indifferent external work so that it is or is not harmful; yet the intention of a further external act, just or unjust, makes that indifferent work to be the beginning of something just or unjust. Thus he who takes up a lost thing or buys a stolen thing with the intention of returning it to its owner acts justly; but if with the mind of retaining it, he commits injury.

2. A work of itself harmful to another, to which someone positively has a right, is not unjust even if it is done from an unjust intention. A judge who condemns a guilty man from hatred so that he may harm him and his family, or one who in legitimate defense wounds an aggressor from hatred, is not unjust, although he sins against charity, because he has a right to condemn or to defend himself.

3. A work not even materially injuring the right of another is not unjust if it is done from an intention of harming. A private person does not act unjustly who from a depraved mind of harming does not extinguish a fire, or does not grant aid, because he is not held to this by strict right.

4. Indeed a materially unjust work, of which someone is only a condition, or occasion, or cause by accident, even if it is done from an unjust intention of harming, is not yet formally unjust, because he himself does not truly effect it, since it does not follow per se from his action. For intention does not change the efficacy of the cause. Thus he who takes away from a miser a thing of slight value, so that he may die from sadness, is guilty not of real death but only of a depraved intention.