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WHILE temperance and fortitude govern the
passions, and by their proper control promote the good of the individual, justice governs our relations with other people,
and by providing for a due observance of each and every right, whether of individuals or of associations, it promotes the good of
society.
Justice is traditionally defined as "a steady unchanging will to render to each his right - (S.T.
II, 11, quaest. Iviii, art. i, habitus secundum quem aliquis constanti et perpetua voluntate ius suum unicuique tribuit).
It is both positive and negative.
Positive in doing or procuring what is right and due,
negative in abstaining from any breach of right.
Thus for every act of justice there are three prerequisites.
First, there must be a person whose right is being respected.
It is only metaphorically that a man can be said to be just to himself, for justice involves a transaction between two people, one
of whom is the possessor of a right which the other respects. When we speak of a man as "not doing himself justice", it
is only by imagining an abstract non-existent "one" over against whom stands "the man", and who does not give
to the man the opportunities or the praise or whatever it is which are his due, and we pretend that this "one" both is
and is not the man himself. We have to do this, because it is impossible to speak of justice otherwise than as between two
persons.
Secondly, there must be a right, something strictly owed and due, as
when we buy something and the price becomes the due of the person who sells.
For this reason almsgiving is not an act of justice, because the recipient has no strict claim. If he has, what he receives is not
alms, but his just due. A worker drawing unemployment insurance rightly denies that he is receiving "charity" or alms.
He is receiving no more than his due, to which he is both legally and morally entitled. Legally, because the law says he is
entitled to it, morally because by his insurance premiums the money is a fair and contracted exchange - the return that is due to
him for what he has given. He has a clear right to the insurance money, and the receipt of it is an act of justice.
Thirdly, the right must be rendered fully, completely and exactly.
If more or less is done then it is not justice, for justice requires an exact and equal exchange. If I am owed £100, it is not
just if I receive only £99: neither is it just if I receive £101. In the former case there is injustice, in the latter there is
charity or generosity. It is for this reason that justice is represented as holding scales, for the object of justice is to arrive
at an exact balance, that each may have and render precisely what is his due. Thus religion is not a part of strict justice,
because although we have a duty and a debt to God, yet we can never fully render that debt; when we have done all we are but
unprofitable servants. So if a man fully and punctiliously fulfils all the duties of religion, still God has not received His
due, and strict justice has not been done. The doing of our religious duties, therefore, is like justice, but falls short of it.
It is called, accordingly, a potential part of justice, or a virtue allied to justice, because it is like justice in that we pay
thereby our due homage and worship to God, but unlike it in that we never reach that exact and full payment of our due which
justice requires.
The object of justice, then, its sphere
and concern, is the things and actions that can be due from one person to another.
In this - that it has as its object external things or actions and not internal motives and passions - it most clearly differs
from temperance and fortitude.
This has as its consequence that the justice of an action is objectively measured, and not subjectively. For example, in
determining whether a particular act was brave or temperate, one has to consider the motive, temperament and conditions of the
agent. What is temperate in one man or in one situation may be excessive in another. But the justice of an act does not depend at
all on the motives or circumstances of the agent, but wholly and entirely on what is precisely due. If a man is owed £100, the
payment of the debt in full is still just, however rich the creditor and however poor the debtor. Nor does it make any
difference to the justice of the act how or why the debtor pays; justice is equally done whether he pays voluntarily or under
compulsion. But no one would call an act brave or temperate that was done under compulsion.
Justice, then, consists in giving to all their
due, their rights, their jus, that to which they are entitled.
It is therefore important to consider, first, what "a right" is, what constitutes it, and how it is acquired.
It is impossible to define a right, because it is a fundamental idea, and sui generis.
One understands its meaning, or one does not.
It can, however, to a certain extent be described.
For example we may call it "that which is strictly owed to another, in fairness, so that he may morally and legally demand it
for his own exclusively as his right". This is a right in a passive sense, meaning the thing owed or due. But
"right" has an active sense also, which may be thus described - "a moral and inviolable 'right' to hold, or demand
something as exclusively one's own for one's own use"; a moral right, not a mere physical power, and inviolable, because no
one can rightly oppose or hinder it. It is in this active sense that we speak of rights of ownership or rights of inheritance.
The source of this "right" lies in a particular moral bond or connection between the right and its owner. This connection is created in various ways by natural and by positive law; but where it exists it constitutes a right; where it is lacking, there is no right. For example, a man who, by working with his hands upon some material which is his creates something, thereby sets up a connection between him and that something which is peculiar to him, and which creates the right to an exclusive ownership of that thing. A father has a connection with his child, which by the nature of things creates a certain right. Not indeed, in this case, a right of ownership, but a right to obedience and respect and, where necessary, support. A connection setting up a right is created by positive law in such a case as that of a guardian adopting an orphan child. Here it is not nature, but the legal instrument of adoption, which brings into being that particular relationship between foster-parent and child, which is the foundation of a series of reciprocal rights.
But although this special connection is the essence and foundation
of rights, their real basis and justification lies in human personality.
A person is a rational, individual self-existent being. As a rational being he is free, and the master of his own actions. As an
individual self-existent being he exists in his own right. He does not exist only or even chiefly for the good of others, but for
his own good and the attainment of his own proper end. It is true that he attains his own end and good by promoting the good of
others, but it is not for others that he exists. He exists in his own right, he is an end and not a means. All men, therefore,
should reverence and respect all other men as self-existent beings, equal to themselves, and no man may deprive another, by
treating him as a means only, of his rightful opportunity of advancing to his own proper end. But the attainment of his proper end
requires certain external means. In particular, freedom is necessary, since there can be no moral life and growth unless there
is room and scope for conscious choice. Further, for the use of freedom and for the exercise of choice there is required some
degree of external possessions and certain rights. For example, a man must be free to choose what use he will make of the things
that constitute his particular environment; he must be free to choose his friends, his recreations, his work. In other words, the
exercise of choice - essential to the moral and spiritual life - requires the possession of rights, and here lies the
justification of all rights. Man has an inalienable right to create or obtain those necessary means by which he progresses towards
his end, and those means themselves are rights. Behind this basis of rights - namely, the sanctity of the individual - lies the
ultimate basis of all right, God Himself, Who has created man and wills that he shall attain to the end for which He created him.
There are different kinds of rights.
For example, one may have a right in a thing, or a right to a thing.
A right in a thing is an absolute right, to do here and now what one likes with a thing that is already in one's possession.
A right to a thing gives one no immediate power over the thing itself, but confers a claim upon another person in whose possession
the thing now is. It does not itself constitute ownership, but creates a claim to ownership against someone else. Thus if a lost
and forgotten heir to an estate returns from Australia to find a kinsman in possession, he has a right to the estate, but not
yet a right in the estate. He cannot walk into the house and order the servants about, still less can he sell part of the estate
and pocket the money, nor even pick the fruit in the garden. His right is limited to a right or claim against his kinsman to
surrender the estate to him. And the law will enforce this right. A right to a thing thus leads to a right in a thing.
A right in a thing is often called ownership or the right of property.
It may be complete or incomplete.
If it is complete it confers an absolute right of using it, selling it, giving it away, altering it, or even destroying it, without anyone else's leave
or licence, in any way and for any purpose one likes, provided it be not against the law. In other words, my complete ownership
means that the thing is mine and no one else's, and I can do with it whatever I like. The qualification,
that what I do with it must not be against the law, is no diminution of the completeness of my ownership. It is inherent in the
concept of rights, for one cannot have a right against a right. But law, whether the natural or positive law, creates rights, and
there can be no right to infringe those rights. So the restrictions imposed by law on the use of property do not take away any
part of ownership, but merely hinder its exercise, by making it impossible to use the property in certain ways without infringing
other people's rights. If the law forbids me to erect a building on a piece of land which I own, that does not affect my full real
ownership; the land is still mine, to do with as I like; only, if I build, I act unjustly because I infringe the right conferred
by the law on others to enjoy the amenity of that piece of land free of building. Where the restrictions are imposed by the moral
or natural law, this is clear enough. If I own a tree, I have, no doubt, a right to fell it if I wish. But it is a manifest
injustice if I fell it in such a way that it destroys my neighbour's roof. In the case of restrictions imposed by positive law, it
must always be understood that they are themselves just, that is, imposed at the dictate of general justice (of which we shall
speak later) in the interests of the whole community. They must not be arbitrary and unreasonable, or they become encroachments on
the rights of property.
Complete ownership carries with it these three principles,
(1) "Property cries for its owner" (Res clamat domino). That is to say, property always tries to return to its
lawful possessor, and therefore an owner always has the right to recover his property, wherever he finds it, and its temporary
holder is always bound to restore it to its lawful owner.
(2) "The profits belong to the owner" (Res fructificat domino). That is, the natural increments belong to the
owner as being a part of the thing owned. Thus a calf born to my cow, is my calf. But increments due to the efforts and industry
of someone else - e.g. the person to whom the property is let or lent - belong to him and not to the owner.
(3) "The owner suffers from the loss of the property" (Res perit domino). That is, a tenant is not bound to make
good any loss or damage to the property unless he was in some way responsible for it.
Incomplete ownership may take the form either of possession without the right to enjoy, or of enjoyment without possession. The former is the kind of ownership possessed by minors and wards. Their property is theirs, but they are not allowed to administer it, nor to enjoy more of its proceeds than their guardians permit. The latter is the kind of ownership enjoyed by tenants and holders of life-interests. They have a right to use and dispose of all the fruits and profits of the property but they cannot dispose of the property itself. Thus he who has a life-interest in a property may live in it, or let it, as he wishes. If he lets it, the rent is his. If he farms it, the profits of the farm are his. In other words, he owns fully all the profits, but not the property.
Rights in the form of ownership or private property are not immoral or unjust but are agreeable to natural law. We have already seen how the possession of material things is necessary as a means for the exercise of choice, and so is essential for the development of personality. But this would be compatible with a restriction of ownership within the narrowest possible limits of the necessities of life, to the enjoyment, without the right of disposal, of such things as food, clothes and a dwelling-place. It is equally compatible with public as well as private ownership. The common ownership of property by a community of individuals, each of whom has a vote and so a share of responsibility in its use and administration, would fully satisfy the demands of personality. The thesis that we are discussing now is, that complete ownership of property by individuals is not immoral and unjust.
It seems, at first sight, that this is not so, because God created the earth for the use and enjoyment of all men equally, and therefore the appropriation of parts by individuals is an encroachment on the rights of all the others. It is true that nature herself does not divide her gifts between private persons, and a society in which there was no private property is quite conceivable. Indeed it is probable that primitive man, who got his food where he could find it, much as the animals do, lived in such a society. But human development brought with it private property, and to argue that because property is not primitive it is not natural, is to make a false use of the idea of nature and to join company with those romantics who find in the "noble savage" the highest concept of man. Private property developed with the development of man, and was, indeed, one of the causes that facilitated that development. For this reason, so far from being contrary to nature, it is so consonant with nature that it may with greater correctness be regarded as being itself natural.
Aquinas gives three grounds on which private property may be held to be, not indeed part of the natural law, but wholly agreeable with it, and a salutary supplement to it. These are his words (S.T. II, 11, quaest. Ixvi, art. 2): "Private property is necessary to human life on three grounds. First, because every man is more particular about procuring something which shall be his only, than he is about procuring what is to be the common property of everyone, or of many; every man is lazy, and leaves to another what is the business of the whole, as happens where you have a lot of servants. Second, human affairs are better managed when each man has a particular responsibility for procuring a particular thing; there would be confusion if everybody were responsible for everything. Third, because private property promotes peace, when every man is content with what he has. And so we see that continual quarrels arise among those who hold possessions in common." In other words, private property, so far from being unnatural and unjust, is a powerful instrument for the promotion of justice, in so far as it tends to promote the common good. The common good requires a certain degree of material wealth, so that there may be provision for leisure, ability to foster the arts and sciences, means to tend the sick and protect the aged and infirm from want, and a sufficient general level of comfort to eliminate the ills of desperate want and to check the impulse of envy. Private property provides the best means for the acquisition of this wealth in the community. In the first place, it fosters industry and checks laziness.
The first essential for the acquisition of wealth is that men should work hard; the stimulus to do so is found in the
institution of private property, whereby the fruits of a man's labours are his, to dispose of as he likes.
In the second place, private property fosters the division of labour, which in its turn increases efficiency. Each man chooses the
work he can do best or turn best to his own advantage, and so concentrating on one function develops increased skill in it.
Without private property this division of labour is harder to arrange, since if there is no reward attached to work, all will seek
the more congenial kinds of labour and avoid and neglect the more onerous, and will be without incentive to improve and increase
their skill in production.
Thirdly, the alternative to private property is that a higher authority should distribute material things to individuals for their
use and enjoyment. If the distribution is precisely equal, a door is open to not unjustified complaints from those who have
special needs. If it is according to need, or merit, there will be complaints that the need and merit have been incorrectly
assessed. In either case the result will be an increased discontent and envy, and a general atmosphere inimical to peace. Private
property, which ensures the distribution of the wealth of the community as a result of inheritance, gift or industry, and
penalises prodigality and idleness with a loss of property, on the whole reduces the area of legitimate complaint and promotes
peace and contentment.
Such is the traditional argument in moral theology for the legitimacy of private property.
It rests, no doubt, on a realist view of human nature, of man in the grip of original sin. It leaves it open to say that in an
ideal society of perfect men, private property would be unnecessary. Such men would labour cheerfully and constantly for the
good of the whole, and would exercise their power of free choice, and so build up their characters, by employing their faculties
not in the management of their own possessions for the future benefit of themselves, their children or their friends, but in
active service of the community. Yet here and now we have to deal not with a perfect community but with men as they are. And for
such men it seems clear that the incentive of reward is necessary to industry, and the hope of benefiting their families and their
friends a stimulus to a provident care of material things. Private property is thus both a protection against temptation to
luxury and extravagance and an incitement to thrift. It is a means whereby man may in some measure plan and control his life. It
is one of the consequences of man's rational nature that he transcends time, having an awareness of past and future. In this he
differs from the animals, who appear to be aware only of the present. Because of this characteristic of his rational nature, it is
man's duty to learn from the experience of the past, and to store the superfluity of the present against the foreseen needs of the
future. In this way also the possession of private property is beneficial to the growth of character and personality.
Yet it would be wrong to infer from this traditional defence of private property, as Roman Catholic theologians infer, that any and every form of socialism is immoral. All that the argument states is that private property is not itself inherently unjust and the servant merely of individual greed. It can be, and on the whole is, beneficial both to individual character and to the community. But it does not follow from that that socialism must be wrong, certainly not a socialism limited to the public ownership of the means of producing the basic necessities of life. There could be no objection from the side of this argument against a Socialism which left intact, or left ample room for, those very results which private property itself promotes. If there were still room for freedom of choice of work, if the industrious were rewarded and the idle penalised, if personal savings and possessions could be enjoyed with security and disposed of freely - in a word, if Socialism claimed the public ownership of some things only, but for the rest left ample scope for private property, it would seem that it could not be condemned as necessarily unjust and harmful. It is only a society in which there is no private property at all, in the full sense,' and in which all men are expected to have that which, except by grace, they cannot have? namely, that they should work as hard and as cheerfully for others as for themselves - it is only such a society which traditional moral theology condemns. To abolish the incentive to work contained in the hope of reward is to remove from man his natural protection against his proneness to be lazy; it is to make the will to work harder than it need be, and so to lay on man a severe and unnecessary burden.
But it would be equally wrong to infer that the defence of private property implies a helpless acquiescence in human selfishness, and an acceptance of unrestricted and unlimited rights in the use of material possessions. As has already been pointed out, that use, being itself a part of justice, is limited by the claims of justice. St. Thomas in the same passage in which he defends private property, adds that "so far as the use of material things goes, man has no exclusive right, but must regard them as held in common, so that he readily shares them with others who are in need". There is a right and a wrong use of property, and a Christian defence of private property must be taken as a defence of its right use only. The right use of material things is limited and determined by the purpose for which they were created. That purpose, clearly, is that all men may be able to live. Accordingly, in extreme need, in a matter of life and death, the right of private property lapses, and a man may take what he absolutely needs for himself or his family, even if its owner refuses to give it. Again, the common good may impose ' restrictions on the right of private property, to ensure that none starve, or that property is not used in such a way as to destroy the community. So, in the necessities of war, the safety or the existence of the State may require the use of particular property in a particular way, and the owner may justly be compelled to comply. Thirdly, charity demands that the superfluity of one relieve the necessities of others. The ownership of property, therefore, carries with it certain obligations to see that none starve, and that one's own superfluity be used for the good of others. In general, in this as in all other moral issues, it is best if it be left to the individual's choice, that so he may learn to do good, and have opportunities of moral action. Yet if duties be largely neglected so that others suffer thereby, it becomes right and proper for laws to be made which shall ensure that the duties be performed. Not to pass such laws is an injustice to the sufferers. Such legal restrictions of the rights of private property are part of legal or general justice, and will be better discussed when we come to that subject.
From this digression we may return to the description of
rights in general.
The object of rights, that is, the things which can be owned, fall into
three classes,
(a) Internal or personal rights, that is, the things which belong to one's own person, such as life, health and the
exercise of one's faculties,
(b) External rights, i.e. property and so forth,
(c) Quasi-external rights, such as reputation and honour, which are partly internal in that they are based on one's own
character, and partly external in that they are opinions about us held by others. External possessions
may be either corporeal or incorporeal. The former are things that can be seen and handled, the second are not perceived by the
senses but apprehended by the mind. They are what we commonly call "rights": e.g. grazing rights, copyright. They are
truly owned and possessed, because they can be bought and sold or given away. Again, external possessions may be either movable
or immovable. Immovable are those which are incapable of being transferred from place to place, or are inseparably connected or
deemed to be so connected with things which cannot be transferred. Examples of immovable possessions are land and buildings,
growing crops, factory machinery and fixtures, rights attaching to an office. The precise list of immovable or "real" property varies in different codes of civil law. Movable possessions are those, which may be easily transferred. They may be
either media of exchange like money, and in consequence have no identity of their own - for example, one pound note is the same as
any other, and if I borrow one I have not to return the same identical one - or they may have an identity of their own and
therefore must, if borrowed or stolen, be restored themselves; another thing held to be equivalent to them, is not sufficient
restitution, unless the owner agrees.
Rights over external possessions may be
obtained in various ways, which are prescribed by the civil laws of different countries.
The underlying principles in all civil codes are these.
First, where a thing has no owner it may be acquired by seizure.
This method of obtaining possession does not greatly concern us, because there are so few things in a modern State that have no
owners, or at least no claimant. This title to ownership is now chiefly limited to such things as hunting, killing vermin, picking wild flowers and collecting sticks.
Secondly, a thing may become one's property by finding it, but only if
all reasonable efforts to trace the owner have failed. The saying that "finding is keeping" is
true only up to a point. The position is that an owner may lose his property but the property does not immediately lose its owner.
It still remains the property of the person who lost it. The finder has no strict duty in justice (though he may have in charity
or neighbourliness) to do anything but leave the article where he found it. If, however, he takes it up, he has implicitly
constituted himself its guardian and trustee, and has a duty in justice to preserve the article intact and to restore it to its
owner. If he appropriates the article without trying to find the owner, or trying only perfunctorily, he is guilty of stealing it.
He has taken what is not his. What steps may be considered adequate in an attempt to find the owner depends on the circumstances
in each case. In England the obvious thing to do, if one has no idea of the identity of the owner, is to take the thing to a
police station or a lost-property office where the owner may reasonably be expected to call for it. Naturally, any expense
involved in keeping the article safely, and in attempting to trace the owner, is recoverable from the owner. If the owner cannot
be found, the article becomes the property of the finder. In some countries, after a certain lapse of time and due enquiry, it
becomes the property of the finder absolutely; in England, however, he may remain in undisturbed possession only until the real
owner appears. If he does appear, no matter how late, the finder is bound to restore the article. That is to say, in England there
is no title by prescription.
[Yet the Statutes of Limitation produce almost the same effect as a title by
prescription. See Halsbury, Laws of England, vol. 27, p. 813, and vol. i, p. 778.]
Title by prescription is a matter of legal convention.
In order to put an end to doubt about ownership, to remove the possibility of endless litigation, and to correct negligence on
the part of owners in claiming their rights, the State orders that after a prescribed lapse of time no claim to a property can be
put forward, but the property is deemed to belong to him who is in actual possession of it. The exact conditions necessary for
acquiring a title by prescription vary in the codes of different States. The most usual titles by prescription are of common
lands and rights-of-way. There are two kinds of prescription, that which acquires a new right, e.g. a right for the public to
cross a particular field; and that which gets rid of an existing right, e.g. when an owner frees his land from a right-of-way.
There are certain necessary conditions for a prescription in all countries. First, the property must be something that is capable
of being privately owned. For example, a private citizen could never by prescription establish a claim to the ownership of a high
road or of a part of the sea. Secondly, the person claiming the title by prescription must be in good faith, that is, he must
honestly believe that the property is rightly his, or at least belongs to no one else. In some cases negative good faith is
sufficient (that is, nothing must be done which is known to be deceptive or fraudulent). For example, if I owe a tradesman £10
but he never sends in his bill, after a certain period the debt is deemed to be wiped out. It may be that I genuinely forgot that
I owed the money, it may be that I knew all the time; in either case the debt is extinguished, for I have no strict duty injustice
to remind a creditor of his rights and urge him to the execution of them. Of course, there is no prescription if, within the time
prescribed, the tradesman sends in a bill.
This is due to the third condition:
That the claimant to the title by prescription must be in actual, unbroken and unchallenged possession.
Thus a public right-of-way cannot be established by prescription if the owner of the land is able to close the entrance even
once a year, for then the possession of access by the public is not continuous. Prescription cannot be established if within the
time limit an action is brought in the courts. The question of ownership will then be settled by the courts on some grounds or
other, but not the ground of prescription. A title by prescription must be distinguished from the effect of the Statute of
Limitations, which bars suits for the recovery of a debt after a certain lapse of time. A tradesman who repeatedly sent in his
bill, but failed to prosecute within the prescribed time, is debarred from recovering his debt by legal process. But the debtor
would still be bound in conscience to pay the debt, for he has no title by prescription since the creditor reminded him of his
debt. His refusal or omission to pay on being reminded and asked for the money is evidence of bad faith.
When one has, in one way or another, established a claim to property, one is said to have a title to that property. A title means the grounds on which one claims or is accorded ownership. Thus if I am given a motorcar or inherit a house, I have a title by gift or inheritance. A true title is that which does truly and in fact confer and establish ownership, such as a gift or purchase. A title which seems to confer ownership and is generally considered to confer ownership, but which in fact suffers from a hidden flaw, is known as a coloured title. For example, if I buy a picture that turns out later to have been stolen, I have a coloured title. Until the fact of theft was discovered my title appeared real and unchallengeable - I had bought the picture and paid the price. A putative title is not unlike a coloured title. It exists where a property is held by an apparently good title, but the title is vitiated by an act of somebody else's. Just as a coloured title by purchase is vitiated by the fact that the article was originally stolen, so a putative title, by inheritance for example, may be vitiated by the discovery of a later will. A title is presumptive if a property is not indeed proved to be one's own but is presumed to be so by the fact of long possession. This is in fact a title by prescription in the making. Lastly, a vicious title is one which bears on its face evidence that its holder is not the owner of the property: e.g. a lease.
Such, then, are rights and the ways in which they may be acquired. Justice consists in large part in the maintenance and observance of them. If we have spoken largely of material possessions, that must not be taken to imply that they are the only or even the most important object of justice; but they are, perhaps, the most frequent.
Justice is divided into general, or legal, justice and particular
justice:
particular justice is divided again into distributive and commutative.
There are these three kinds of justice - general, distributive and commutative, and only these three.
For justice governs our relations with other men, and there are only three possibilities.
There is the relation of the individual to the community, and this is the sphere of general justice.
There is the relation of the community to the individual, and this is governed by distributive justice.
And there is the relation of the individual to the individual, which is the object of commutative justice.
These three kinds of justice do not differ merely in name, nor only
in their object, which is the debt due from individual to community, from community to individual and from individual to
individual respectively.
They differ also in their subject; for commutative justice is the business of individuals, but distributive justice, and
to a large extent general justice, is the province of governments.
They differ further in their methods of arriving at what is just.
Commutative justice deals,
as its name implies, with exchanges;
it aims at establishing an exactly equal balance of exchange, a fair quid pro quo;
it asserts that so much of this precisely equals or balances so much of that,
whether the subject is a just price for an article,
or a fair wage for a day's work,
or a sufficient compensation for loss suffered.
And this it tries to do even between things which are of different qualities and not strictly comparable.
For example, what is a fair compensation in money for the grief, worry and loss of amenities occasioned by a slanderous attack
on one's reputation? Commutative justice assesses the damage at an amount exactly equivalent to the loss endured.
General and distributive justice, on the other hand, do not aim at an exact equality.
They endeavour to assess what is the just proportion of the total wealth,
or honour, or whatever it may be,
of the community which an individual should receive,
having due regard to the amount to be distributed,
and to the value and need of the recipients.
Or, in the case of general justice,
what is the fair contribution for each individual to make to the needs and welfare of the community.
The decisions of commutative justice are the same for everybody, irrespective of their differing conditions.
The just price of potatoes is the same for rich and poor, for it represents a fair, or equal, rate of exchange, - a potato is
worth so much. But the decisions of general and distributive justice vary between man and man. To whom much is given, from him
much is required. The duties of the rich and educated to the community are greater than those of the poor and illiterate. The
punishment of a habitual and hardened offender is more severe than that of a youth offending for the first time. Yet these varying
decisions are not more or less just according as they approximate to the exact mean - that is the quality of commutative justice?
they are all equally just, for they establish a proportionate equality.
Of these three kinds of justice, distributive covers the smallest field, and may
conveniently be dealt with first. The essence of distributive justice is the distribution to individuals of goods that are
publicly owned.
Those who are entrusted with this task have a duty in justice to award them to those whom they find to be most deserving of them,
all reasonable considerations having been taken into account.
The opposite of distributive justice is "respect of persons" or favouritism, that is, the distributing of these
publicly owned goods for irrelevant reasons. It is only publicly-owned goods which are in question, because of course one is free
to distribute one's own property as one likes; but stewards dispensing what is not theirs are required to do so in proportion to
the merits and other qualities of the recipients. Perhaps the most important part of distributive justice is the appointment to
posts and offices. It is the duty of those entrusted with making such appointments to choose fit and proper persons who are
capable of discharging those offices adequately. More, it is their duty to choose the best people for each office, in preference
to others who are sufficiently but less highly qualified. Besides posts and offices, there fall for distribution among the members
of a community a number of varying grants and advantages, such as pensions, scholarships, admissions to educational or other
institutions, charitable donations, etc. In all of these distributive justice requires that regard be had to the good of the
community as a whole and the particular purpose for which the grant exists. For example, grants in aid of education are to be
given to those most capable of benefiting from education, and grants in relief of need to those who are most in need. To allot
these grants on account of personal friendship, or from political bias or from any other reason irrelevant to the cause, for which
the grant is instituted, is "respect of persons". Another part of distributive justice is the awarding of honours. A
government in advising the sovereign to bestow honours must consider only the worth of the individuals, their services to the
State in the office that they hold. The bestowal of honours on account only of wealth or of private benefits received is
"respect of persons". Lastly, distributive justice is concerned with the imposition of taxes and other such-like
public burdens, because immunity from such burdens is the equivalent of a benefit or advantage; and therefore their even
distribution, so that none bears more than his fair share, is the work of distributive justice. The persons upon whom distributive
justice imposes obligations are not only the governments of States, but all those in authority who have the duty of administering
goods and privileges which belong to a society. Thus the patrons of ecclesiastical posts and benefices, local educational
authorities, the managing directors of firms, the trustees of charities and many others, are subject to distributive justice in
the performance of their particular duties.
He who offends against distributive justice only is not obliged to make any restitution,
for he has not offended against anyone's strict right.
For example, let us suppose that the post of bank manager in a small market town is vacant. The position is a desirable one, for
it carries with it an attractive house and garden, and is in a pleasant social neighbourhood. The official in London who is
responsible for making staff appointments considers his list of persons suitable for the post. Some are on the list through
recommendation for promotion, some through having applied for this particular job. It is clear that none of those on the list has
an absolute right to the post, not even he whose name heads the list as being the subject of several weighty testimonials to his
extreme suitability for this very office. For managerships do not exist as a reward for the industry or efficiency of clerks,
but for the satisfactory carrying-on of the bank's business. Yet because of the amenities attaching to them - authority, freedom,
salary, house, etc. - they have the nature of rewards, and therefore distributive justice demands that the appointments to them be
made fairly, i.e. in proportion to the talents and merits of the applicants, and on this ground the fittest person ought to be
appointed. Yet the fittest person cannot demand the appointment as of right, since the office is not his but the bank's, and he
has not earned it by his merit but only deserved it. If, therefore, our London official passes him over and gives the job to the
son of an old friend whom, though adequate, he knows to be less suitable, while the official sins against distributive justice,
the person passed over cannot sue him for damages; that is, the official is not bound either by law or in conscience to give
compensation. Neither is he bound to give compensation to the bank, for his duty towards the bank only requires absolutely that he
appoint a fit and proper person, one capable of managing the bank's business satisfactorily, and this, we may presume, the son of
his old school friend can do adequately. So long as he chooses a fit person, the bank has no claim against him, even though he might have chosen someone more fit.
But an offence against distributive justice very often
involves also an offence against commutative justice; it involves someone's strict right, and in that case compensation is due.
For example, if those entrusted with the duty of making appointments appoint persons whom they know to be unfit and incapable
of executing the office, in preference to others who are well qualified, they owe reparation to the public body in whose name they
are acting. For the public body has a strict right to the appointment of fit persons, and has created its appointments officer on
that understanding: and if it actually suffers loss through the ineptness of the person appointed, it is entitled to compensation
for that too. In certain cases compensation is due also to the better candidate who has been passed over, if it can be shown that
he had a strict right to be appointed. Such cases are appointments, honours, prizes, etc., which are instituted solely or chiefly
to reward merit. In such cases the most meritorious candidate has a right to be elected, and if he is passed over in favour of a
less meritorious person he has been cheated and robbed. Among such cases must also be included elections made after open
examination or public advertisement. For the holding of the examination or the invitation to candidates to apply is a tacit or
implied contract that the best candidate so examined or so applying will be elected, and it is on that understanding that the
candidates submit to being tested and compared with each other.
We may illustrate what we have said by three scenes from university life.
The examiners in a final honours school are required to divide the candidates into classes in order of merit. This is wholly a
matter of commutative justice. For the examiners are under contract with the university and the candidates to award the classes by
merit. A candidate whose work is as meritorious as that of those placed in the first class is being robbed of what is his right
if he is placed in the second class. An examiner who knowingly and deliberately caused a candidate to be given lower honours than
he deserved, would be bound, in conscience, to make him reparation.
A college is endowed with a prize fellowship for the encouragement of the study of modern history, to be awarded to the most successful candidate in a written examination. If the best candidate is passed over, and another able but less brilliant historian is elected because of his social gifts, there is an offence against both distributive and commutative justice. The best candidate has a right to the award.
A college is proceeding to the election of a tutor and fellow. It advertises for applicants but states that it will not confine itself, in making the election, to those who have applied. The qualifications of a good tutor and fellow are many and various; the balancing of them against each other is a difficult and hazardous business. The college is clearly bound to elect a person whom it considers to be fit and proper. To elect, for private reasons, someone who it knows to be unworthy would certainly be to have "respect of persons" and an offence against distributive justice. It would be an offence against general justice also, for such an appointment is harmful to the cause of education and so detrimental to the welfare of society. It would probably be an offence against commutative justice as well, for it might be argued that it was a misuse of endowments, which the college holds on trust to be employed for the advancement of learning. A deliberate bad appointment would therefore amount to fraud. But supposing the college elects a man who is worthy but who is not the strongest candidate, what then? Here there is a clear offence against distributive justice, which requires that offices, etc., should be distributed in accordance with the merits and qualities of the recipients, but there is no offence against commutative justice. The State has no complaint, because a duly qualified candidate has been elected; the unsuccessful though better qualified candidates have no complaint, for they have no absolute right to a fellowship, either at this college or at any other; for fellowships are not simply rewards of merit, nor in this case was there any contract that the best man applying would be elected.
The question when an offence against distributive justice is also one against commutative justice is not, however, of great practical importance, because it is scarcely ever possible to prove both that the bad appointment, etc., was deliberate and that the candidate passed over was beyond all reasonable doubt a better qualified man. Yet the point is not without its importance, because it stresses the added gravity of careless and ill-considered awards. It is well to remind those who make them, that in certain circumstances they are morally, if not legally, bound to compensate those whom their favouritism has wronged. Further, all offences against distributive justice are grave, wholly apart from questions of commutative justice - both by reason of their injustice and because of the hurt which they may cause to the common good. All those in authority whose duty it is to distribute goods of every kind of which they are stewards and trustees should strive always to perform that office with the strict firmness and impartiality of a just judge.
A great part of the administration of justice in the law courts falls under the heading of
distributive justice.
Not indeed that which is concerned with breaches of contract and damages for injuries, for that is commutative justice, but the
imposition of punishments for crimes. In a sense, too, the whole of the work of the law courts is the work of distributive
justice, because it is the function of the courts to afford protection and assistance to individuals in proportion to their
rights. Thus in every judgement there is the possibility of respect of persons; even in determining a breach of contract,
essentially a matter of commutative justice, it is possible to favour the poor man or the rich man in his cause. The essential
quality of a judge, therefore, is incorruptibility, a firm resolution to be swayed neither by hatred nor friendship, by threats
or prayers, by advantage or danger, but to deliver judgement according to justice and in obedience to his conscience.
In this connection there is one point worth a moment's consideration.
It is the duty of a judge to deliver judgement in accordance with the evidence.
He sits in court not as a private individual but as president of the court, and therefore he acts only on the knowledge that the
court has. Otherwise he must give the impression of injustice. Hence if he knows privately, from information that has not come out
in court, that the prisoner is guilty, but on the evidence actually adduced he clearly appears innocent, it is the duty of the
judge to acquit. On the other hand, if the prisoner is proved guilty but the judge knows privately that he is innocent, though if
the worst comes to the worst it is still his duty to convict, there are many expedients that may be tried before that position
is reached. For example, he may himself carefully examine the witnesses, in the endeavour to elicit from them the evidence
favourable to the accused. Or again, he may indicate to the accused that he has the right to appeal. Or even, by making a
technical error in the conduct of the case or in his summing-up, he may make it practically certain that an appeal will be lodged
and his judgement overruled.
That a judge must give sentence in accordance with the evidence, even if it means sentencing one whom he knows to be innocent, is the general and more probable opinion. But there are other opinions, also probable. [See p.12 supra for the disagreement of Aquinas with Bonaventura on this point.] It is held that the judge should not so sentence if it is a question of the death penalty or of any very grave offence. The reason for this is that a serious miscarriage of justice is extremely damaging to that very common good which it is the aim and purpose of the judicial system to safeguard and promote. Such a miscarriage must therefore at all costs be avoided. Others again hold that in every such case the judge should acquit, because to condemn an innocent man is intrinsically wrong and unjustifiable. This is a not unimportant question, because it affects not only legal officials but also all those who may from time to time have to serve on juries. In England, in courts of law, what I have called the more probable opinion is obligatory. It is a maxim of English law that a juryman must go by the evidence, and by the evidence alone.
In a criminal case, when determining the precise penalty to be inflicted, the judge is exercising distributive justice. It is his duty to grade the punishment to fit the seriousness of the crime and the guilt of the criminal. He must use his best endeavours to avoid both undue severity and leniency. In the exercise of his discretion he treats each case on its merits, and varies the penalty in accordance with the circumstances in order that he may arrive at a punishment that is proportionate to the offence, having regard both to the interests of the criminal and to the public welfare.
In thus considering the public welfare, the judge enters the sphere of general justice.
The object of general justice is the common good. The common good is not simply the sum of the good of each individual member of
the society. It is the good of the society itself, a collective, social good. Yet this common good is not something apart from the
good of individuals, to which the individuals are to be ruthlessly sacrificed. It is a good that exists in the good of
individuals. The health of a society consists in the loyalty and cooperation of its individual members, their mutual help and
friendliness, their individual sense of satisfaction and happiness. A moment's consideration is enough to show that that
condition is something separable in thought from the private well being of the members, although it is that private well being
which constitutes it. The requirement of general justice is that each single member contribute what is due from him to the
promotion of this common good.
This common good and healthy condition is that ordering of society which is the prerequisite of "the highest possible attainment (that is, the highest compatible with the good of the whole) of persons to live their lives as persons" (Maritain, Rights of Man, p. 9). Now a person is first and foremost a moral agent; he is one who, through the exercise of reason and will, is master of his own actions, able to choose his end and direct his energies towards the attainment of it. And in the conscious pursuit of his true end he finds the complete fulfilment of his nature, or the full development of his personality. That each citizen should himself be moral, that is, live in pursuit of his true end, is therefore the first and foremost contribution which each can and should make to the common good. Moreover, the common good, the life of persons together as persons, demands morality as the very condition of its being, since full personal life involves that harmonious control and direction of the passions by reason and that self-giving for the sake of others which is morality. In other words, the common good is the attainment by all, so far as is possible on earth, of a full and complete human life; which full and complete human life consists primarily and essentially in the practice and possession of the virtues. But it also involves, as a prerequisite, those external conditions and possessions that are essential for the practice of virtue.
A person is the proper subject of rights, which rights are founded in the fundamental right of all persons to fulfil their destiny to become fully developed persons. All other rights flow from this right, as being rights to things necessary for the fulfilment of our destiny. Hence the common good demands the careful safeguarding and protection of rights. Each person in the community must scrupulously observe the rights of all other persons, as being the necessary conditions enabling the others to live fully as persons. Thus justice - the observance of rights - is the foundation of the common good. And all that promotes justice, promotes at the same time the common good.
Again, if persons are to live their lives as persons, it is necessary not only that their individual rights be safeguarded against mutual encroachments on each other, it is even more essential that their rights be collectively protected, that is, that the community as a community be able to defend itself against an external aggressor who seeks to destroy the community or to exploit it for his own ends. The common good therefore
Justice requires, and in the name of general justice imposes it as a duty, that every citizen play his part in the defence of his country. And to that end he should surrender, and may justly be called upon to surrender, any or all of those personal rights the maintenance and protection of which is the normal object of the common good and which are owed to him by general justice. Thus military service and directed labour are just and a duty in times of national emergency, if they are necessary for the preservation of the State. This does not mean that the State is so superior to the individual that it can at all times, and as a matter of normality, demand the surrender of personal rights: it means that since personal rights and the good life generally are only possible within and by means of a society, if the society be destroyed they are destroyed necessarily with it. Therefore they are sacrificed temporarily that they may with greater certainty be preserved.
Lastly, this same common good, of a full and complete human life for all members of the community, demands that the State be not only strong against outside enemies, but also rich. That is to say, fully developed human life requires civilisation, in the form of a mastery over nature, giving independence and leisure. This mastery is achieved by coordinated human labour. By the division of labour man can achieve results wholly impossible for him as an isolated individual. A raising of the general standard of living by pooling the results of human labour is one of the most obvious fruits of association, whereby the efforts of the one benefit the whole, and are reflected back to the advantage again of the individual. This is to be seen with perfect clarity from the most primitive essays in land cultivation to the most elaborate achievements of a machine age, such as the distribution of electric power. Thus the common good demands and general justice requires that each man labour, by hand or brain, that thereby he may make his own contribution to the common wealth. This does not mean a common ownership of the results of labour or of the means of production - though this may in some cases be just - but simply that the average man is rich materially and culturally in proportion as the community to which he belongs is rich and wealth is acquired by labour. For this reason it is every man's duty to labour, that he and all others may enter into the fruits of his labour.
It is the duty, then, of every individual, in the interest of the common good, to lead a moral life, to respect the rights of others, to defend the State against aggression, and to make his contribution to its common wealth. In this way he plays his part in achieving the true aim of a State, which in Maritain's words is "to procure the common good of the multitude, in such a manner that each concrete person, not only in a privileged class, but throughout the whole mass, may truly reach that measure of independence which is proper to civilised life and which is insured alike by the economic guarantees of work and property, political rights, civil virtues, and the cultivation of the mind" (op. cit. p. 27).
While this aim and common good imposes in this way duties on every man, it imposes special obligations on those who, being placed in positions of authority, have the particular duty of guiding and leading the rest towards its attainment: in other words, upon those whose task it is to frame the laws and mould the general conditions in which a community lives. It is their duty to pass such laws and create such conditions as will foster and promote the virtues, respect and maintain essential rights, and generally facilitate the development of a full human life for the common man.
Their first duty is to safeguard the fundamental rights of personal liberty - the right to live, the right to choose one's own religion and to pursue moral excellence (i.e. liberty of conscience), the right to marry the person of one's own choice, the right to raise a family and the rights due to a family, the right to one's own property, which is at once a sphere of choice and action, and a protection against encroachment on other liberties.
In the second place, it is their duty to promote conditions, which shall facilitate the development of personality. In particular, it is their duty to permit and encourage the free association of individuals in groups for all purposes, which are not in themselves vicious and immoral and therefore inimical to the common good. It is their duty to encourage and enable parents to educate their children well, and to discipline, feed and clothe them wisely - to encourage but not to supersede the parents in this all-important work, which belongs of right and by nature to the status of parenthood. It is their duty to ensure, so far as is possible, an equitable distribution of the wealth and resources of the community, to preserve justice as between capital and labour by enforcing a just wage and commanding fair and healthy conditions of labour, and in general to protect the weak and defenceless against the strong.
But a full and complete list of the duties of government under general justice, of the aims to be kept in view, and the general conditions of living to be created would require a comprehensive treatise on political philosophy, and in so far as it descended into particular detail would vary with every age and country. For in this sphere of practical politics what is desirable must always be correlated with what is possible, and changes and disturbances in the existing order of things must be so engineered that the old pillars of law and order be not removed until there are new and firm ones to take their place. Some abuses and injustices must sometimes be tolerated, at least for a while, if their sudden and drastic suppression would only open the door to other and worse evils. All reforms must command the assent and agreement of the mass of the people, for without that they cannot be enforced. The work of government, therefore, is primarily educative, and consists in promoting a deeper and wider recognition of the things in which the common good consists, and in a quick readiness to take advantage of that wider recognition through the introduction of reforms as they become ripe. It is enough here to repeat that general justice requires the promotion of the fullest and best possible human life for all members of the community, and in consequence it demands a respect for all those rights by means of which such a life is made possible and in the enjoyment of which it exercises itself.
We come now to commutative justice.
Commutative justice has for its sphere the exchanges that can take place between two individuals.
These exchanges may be either voluntary or involuntary.
They are involuntary when one uses someone else's property or labour or person against his will, either secretly through fraud, or
openly through violence. This is a misuse of another's rights, and commutative justice requires that the right thus misused be
restored and a fair and equal balance recreated. Such a misuse of rights occurs, for example, against property, in theft if it
is done secretly, or in spoliation if it is done openly; or against the person, in murder and assault, imprisonment and flogging
and mutilation. Other offences against the person are directed not to the body itself but to a man's honour and reputation, as for
example in slander, libel, false witness, abuse, or an unjust conviction in the law courts. Again, an offence against commutative
justice may be committed in connection with an allied person: that is to say, I am not injured in my own person or property or
reputation, but through someone else with whom I am connected. Thus adultery is an offence against commutative justice because the
husband is unjustly deprived of the fidelity of his wife to which he is entitled by the marriage vows. Offences against
commutative justice may occur similarly in connection with a man's children; to harm them, kidnap them or alienate their
affections is to injure the parents by depriving them of something that is rightly theirs. Thus under the heading of violent
breaches of commutative justice arise discussions on such matters as suicide and mutilation - offences against one's own body:
murder and assault, abortion, rape, adultery - offences against the person of another: theft - offences against property: lies,
breach of confidence, slander, libel, defamation - offences against another by word, as opposed to deed.
The second great branch of commutative
justice concerns voluntary exchanges, or contracts.
These take the form of buying and selling, renting and leasing, loans and deposits. Hence under this heading there fall to be
discussed such subjects as the nature of contracts in general, the condition of their validity, obligations ensuing and so forth:
loans and interest, usury: the just price, the obligations and rights of a purchaser, the obligations and rights of a vendor:
questions relating to the employment of labour, such as the contract between employer and employee, the rights and obligations
of both, and the just wage; obligations and rights of a landlord and tenant, considered as the vendor and purchaser respectively
of the use of a thing (S.T. II, 11, quaest. Ixi, art. 3).
Commutative justice requires that there be an exact equality in the exchanges between man
and man, that each man receive exactly his due.
An offence against commutative justice occurs when this exact equality or exact due is upset, and commutative justice is not
satisfied until the balance is restored.
From this arises the distinctive feature of commutative justice, the obligation of restitution.
Restitution is defined (S.T. II, 11, quaest. I, art i) as "putting someone back into possession of his own
property, and so by restitution you get an equality of justice by way of compensation of one thing for another ... and therefore
restitution is an act of commutative justice, when for instance the property of one man is held by another, either voluntarily as
in a loan or deposit, or involuntarily as in rapine or theft".
But since it often happens that the property in question cannot be itself restored, because it has been destroyed - for example,
the loss of an eye, or the loss of an opportunity to make an honest and lucrative contract through a slanderous attack on one's
reputation - restitution often takes the form of compensation. Restitution is also akin to satisfaction, but is not precisely the
same thing.
Restitution concerns the thing taken or the damage caused, but satisfaction relates to the person injured. Thus there may be satisfaction due, even where no damage has been caused; for example, an apology may be due to a person who has been insulted, although he has not suffered any loss as a result of the insult. And sometimes both satisfaction and restitution are due, as when we have "added insult to injury". Yet the two concepts are very closely akin, for they both involve the restoring to a man of that of which he has been unjustly deprived1. For instance, if a man has been publicly insulted so that he has publicly lost honour, there is due to him satisfaction in the form of a public apology; that is to say, the honour, which was publicly taken from him, must be publicly restored.
The restitution of a thing unjustly taken, and compensation for loss or damage unjustly inflicted, is a strict obligation. Not to restore or compensate is a violation of justice, and is equivalent to a continued consent to injustice; it is wholly inconsistent with repentance and is, in consequence, a bar to absolution. By refusal, here, is meant unwillingness. If restitution is in fact impossible, it cannot be demanded as a condition of absolution. But in its place there must be a sincere intention of making restitution _at the first possible opportunity. As has been implied, restitution always takes one of two forms. It is either a restitution of the thing itself, which has been unjustly taken or is unjustly held: or it is a compensation for a thing unjustly taken but now destroyed and therefore incapable of being restored.
The obligation to restore a thing unjustly held varies with the moral condition of its
present holder, whether he is in good faith or bad faith.
A possessor in good faith is one who acquired the
property in question by what appeared to be honourable means, and who honestly thought that the property was rightfully his own,
but who now discovers, by accident, that in fact he has no claim to it.
For example, a man may buy a picture from a friend whom he has never had any reason to suspect of dishonesty, and later find
that the picture was in fact stolen. On the principle "res clamat domino" the possessor in good faith is bound to
restore it to its proper owner, as soon as his identity is known, unless by lapse of time and the laws of the State he has
acquired a prescriptive right to it. But he is not bound to restore any of the fruits or profits accruing from his possession of
the property; neither does he incur any obligation to restore, if the property has been lost or destroyed, even though it was
through his fault or negligence. He can further claim compensation from the owner for all expenses incurred by him in the
process of preserving the property intact. In some countries he is also entitled by the law to recover from the owner the price
that he paid for the thing when he bought it.
A possessor in bad faith is one who
accepts and continues to hold something to which he knows he has no rightful title.
In his case the act of injustice is formal, i.e. conscious and deliberate, whereas in the case of the possessor in good faith
the injustice is material only, i.e. unconscious and unintentional. The possessor in bad faith accordingly is bound in justice
by a stricter obligation to restore. He has to make restitution not only for the thing taken, but also for the unjust taking of
it. He must make good the full loss and damage caused to the rightful owner.
Accordingly he must
(1) restore the thing itself, if he still has it, or if it has perished, its equivalent. This is because he is in the position of
a thief, and is bound injustice so to repair his wrong act that he leaves the rightful owner completely undamaged: he is therefore
bound to restore the full equivalent of the thing, even though it has been destroyed through no fault of his, and he has received
no benefit from it.
There is one possible exception to this rule. If the thing would have been destroyed there and then if the thief had not taken it, or would have perished as and when it did perish whether the thief had taken it or no, restitution is not due. This is because the owner has suffered no real loss. For example, if while travelling on a liner I steal my neighbour's suitcase from his cabin, but later in the voyage the liner is sunk and all the baggage on board is lost, I am not bound to make good my theft - that is, in conscience; the civil law may prescribe otherwise as a penalty for theft. Or again if, during an air raid, a member of the Civil Defence removes from a burning house a quantity of wine, and does not restore the wine to the owner, he is guilty of looting. He may, however, make a charge for his trouble in salving the wine, unless he is precluded from so doing by the terms of his contract with the State, which pays him, as a member of the Civil Defence Corps, to perform that among his other duties.
If on the other hand he drinks the wine in the burning house, since the wine would otherwise inevitably perish, he is under no obligation to the owner, who has suffered no additional loss through his action. Yet he might be answerable to the State for failure to perform one of his duties, i.e. rescue threatened property.
(2) A possessor in bad faith is bound to restore any benefits he has had from his possession of the thing, and any benefits, which the rightful owner would have had if he had not been deprived of it. For example, if the thing in question is a sum of money, the interest, which the money might have earned, must be restored, even though, in fact, the owner would not have invested it. But the obligation does not apply to the profits from the thing, which is due to the industry of the unjust possessor. Thus, if he uses the money to buy a retail business, he is bound to restore the capital, and interest on the capital, but not the whole of the profits of the business; for these profits are his, rightly, since they result primarily from his own labour.
(3) A possessor in bad faith is bound to make good to the rightful owner both any damage that has resulted and any profit that he has prevented. This is clearly a matter which it is very difficult to calculate, and due weight must be attached to the uncertainties involved, and the different circumstances which might have hindered the profit alleged to have been prevented, or which might have caused the damage which has resulted wholly apart from the unjust possessor's action. For example, if by forging a will I have come into possession of a factory, to the exclusion of the rightful but incompetent heir, what precisely is the amount of profit that the factory would have made under his incompetent management? The general rule is that the possessor in bad faith is bound to make good the damage that he foresaw would probably result to the owner. The reason for this will become clear when we discuss what constitutes damage in relation to the obligation to restore.
A possessor in doubtful faith is one
who has serious misgivings that a thing that he possesses may not really be his. These misgivings may arise at the time of
acquiring the property, or they may supervene later. If they supervene later, the possessor is bound to make careful enquiry in an
effort to arrive at the truth. If, in spite of such enquiry, the misgivings remain, he is entitled to retain the property.
This is a case where "melior est conditio possidentis". The true ownership is strictly doubtful, and the de facto
possessor is given the benefit of the doubt. If the true ownership is established, however, the possessor is bound to restore, but
subject to all the conditions and rights of a possessor in good faith, which he is. If, after proper enquiry, it is probable that
the de facto possessor is the rightful owner, but more probable that he is not, he is still entitled to keep the property. This
is a case where the rules of probabilism apply. No one is to be extruded from his property, unless it is morally certain that he
is not the rightful owner. But in this case, the fact that his ownership is probable, i.e. that there are grave and solid reasons
to believe that he is the rightful owner, shows that there is no moral certainty that he is not the rightful owner.
If the misgivings arise at the time of acquiring the property, a man ought not to accept it. For again, melior est conditio possidentis. So long as there is serious doubt, the existing owner must be given the benefit of it. Therefore, if I believe, but am far from sure, that I am the rightful owner of a certain house, I cannot evict the existing owner on the strength of my belief only. If I receive, by gift or purchase, an article, which I have reason to believe, but am not sure, is stolen, I am bound to make careful enquiry. If, even so, the fact remains doubtful, I am bound to make a partial restoration to the probably rightful owner. I am not entitled to keep the whole, because of the doubt: I am not bound to hand over the whole because again of the doubt. It would not be fair to subject me to so great a loss on a probable opinion only. This at least is the general view of moral theologians; though there are some who maintain that whilst to accept an article at all is sinful when there is a doubt whether the person from whom we are accepting it has the right to dispose of it, yet if it be accepted and the doubt still remains a doubt after due enquiry, we are not strictly bound to restore it either in whole or in part. (For the former see St. Alphonsus, Lib IV, no. 625; for the latter, d' Annibale, Summale Theol. Mor. II, no. 121.)
The second form of restitution is that of compensation for damage inflicted.
For such compensation to be obligatory in conscience, the following conditions are necessary,
(1) The damage must be actually unjust, that is, it must violate
commutative justice by infringing someone's strict right.
Apart from this condition the damage may be sinful as being contrary to our duty to love our neighbour, but it is not a damage
that involves an obligation to make restitution. Thus if I see a cow about to enter my friend's garden, where it will certainly do
a great deal of damage, and I do not take the trouble to close the gate to keep the cow out, I am guilty, no doubt, of a very
unfriendly act, or rather omission, but my friend has no claim for damage against me, because he has no strict right to demand
that I should close his gate for him. We have already discussed another example of this point in the matter of the claim to
compensation by a candidate for an office or prize who is passed over in favour of a less worthy candidate. If he cannot establish
that he had a strict right to the award as being the most worthy candidate, the offence is one against distributive justice and
not commutative, and he has no claim to compensation.
(2) The damaging act must be effectively
unjust, that is, it must be the actual cause of the damage which resulted.
A man is only to be held responsible for that of which he is the cause, either directly or indirectly. If, therefore, the damage
occurred only accidentally as the result of his action, or if his action was the occasion of the damage rather than its cause, he
is not liable for compensation. The thing to be considered is the causal connection between the action and the damage. Thus if
an innkeeper sells a man drink, and the man gets drunk and breaks his leg staggering home, the innkeeper is not responsible. He
would still not be liable even if he foresaw that this was likely to happen; because the mere selling of the drink was not the
cause of the damage but only the occasion. But if the innkeeper made the man drunk in order that, when drunk, he should break his
leg, the matter is different. In this case the innkeeper's action is the cause (at least the instrumental cause) of the damage.
Similarly, if the police suspect somebody else of my crime, and he is arrested, subjected to annoyances, and suffers pecuniary
loss through enforced absence from business due to the enquiries, he has no claim against me, for my crime was not the cause of
his troubles but the mere occasion of it. The cause was the police suspicions, for which I cannot be held to blame. It would be
otherwise if I deliberately caused suspicion to fall on him, e.g. by sending an anonymous letter, or committing the crime dressed
in his hat and coat. In this case my actions would be the cause of his loss and he would have a claim against me.
(3) The damaging act must be formally
unjust, that is, committed in full knowledge that it is an unjust act, and with deliberate intention to violate justice.
The reason for this is obvious: for without this condition the act is not a fully voluntary act, and therefore cannot involve any
responsibility. Thus an act may be the cause of my neighbour's loss and an infringement of his strict right and yet not involve me
in any liability for compensation, because the inflicting of such loss was not part of my intention in performing the act, and
the act was, in consequence, only materially unjust and not formally. An example of this kind of material damage is provided by
the fast bowler in a cricket match who hits the opposing batsman a severe blow on the head, causing concussion and a prolonged
absence from work, with consequent pecuniary loss. The bowler does not owe compensation, because the damage was not intended,
and was, in fact, quite "accidental". But if the damage is attributable in any degree to my carelessness, the case is
altered. As we have seen in discussing invincible ignorance, I am responsible or partially responsible for all the results of an
action that I should have foreseen, and for the consequences of a negligence for which I am to blame. Therefore, in proportion to
the degree of culpable negligence involved in my action, I have a more or less strict obligation to make restitution.
But for the most part, the compensation due for material damage arising out of negligence does not become obligatory before it is declared to be so by a court of law. This is because the payment of the compensation is a kind of punishment for the negligence, and, owing to the weakness of human nature, men are not expected to punish themselves, nor is it fair to expect them to assess for themselves the degree to which their negligence contributed to the damage. To do so would be to penalise the scrupulous and conscientious and to favour the lax. Accordingly, all such cases of damage through negligence should be decided by an impartial tribunal.
Purely material damage may also involve liability to
compensation, if this liability was stated in a previous contract.
For example, it is customary for railway companies to state that they accept all risks to goods in transit, and in virtue of this
contract they become liable to pay compensation. Sometimes, also, compensation is due even where there was no such explicit
clause in the contract. Thus when the advantage of "the deal" lies wholly with the recipient, he is morally bound to
make restitution even though the loss was only in a very small degree due to his negligence. For example, if I borrow a book and
lose it, or allow it to be stolen from my car, I must replace it. If, however, the advantage lies with the giver, as when a person
deposits his property with another "for safe keeping", there is no liability to restitution unless there was gross
negligence. Similarly when the contract is advantageous to both parties, as in a sale, or in the relationship of doctor and
patient, restitution is due only where there has been gross negligence. This is just, because there is an implied condition in
such contracts that each party will loyally observe its terms to the best of his ability. Gross negligence is a breach of this
implied condition.
The civil laws sometimes impose damages for losses incurred through no degree of culpable negligence at all. The purpose of such laws is to make people more careful and to protect the citizen from frauds and quibbles. Such damages, however, are not due in conscience until they are ordered by a court of law. For they do not arise, and are not owed, because of the loss considered in and by itself, but are imposed by the community for other reasons. If they were left to themselves, the injured party could not claim his damages from the injurer as of strict right, for the injurer has not inflicted the loss culpably, and is not strictly responsible for it. The right to damages only arises, and the obligation to pay them only binds in conscience, because of the intervention of the community in the form of positive law, enacting that such and such damages shall be paid in the interests of the common good.
The principle that a man is not liable to give compensation for damage that he never intended to inflict, has given rise to some strange decisions. Perhaps the most famous is that discussed by St. Alphonsus (Lib. Ill, no. 629). If a man intends to set fire to his enemy's house, but by mistake burns that of his friend instead, is he bound to recompense his friend? It has been argued, and the conclusion has the support of St. Alphonsus himself, that he is not so bound. The reasoning is this. The man intended to injure his enemy and no one else, and honestly believed that the house he was burning belonged to his enemy. Now he cannot owe compensation to his enemy, because he has not in fact injured him, he only intended to. Neither does he owe it to his friend, because the injury that his friend suffered was "accidental", i.e. formed no part of his intention: it was an "involuntary" action in this respect, caused by invincible ignorance, and therefore he cannot be held responsible for it.
Restitution or compensation is only due from an act which is effectively and intentionally (i.e. culpably) unjust. But this act, in respect of the enemy, is intentionally, but not effectively unjust; in respect of the friend, is unjust effectively but not intentionally. Therefore no compensation is due. Such a decision is logical enough in following from the premises, but is offensive to common sense, and provides a good example of how casuistry can be abused if it be applied in too abstract and formal a manner. The error here lies in the premises. This act of arson was both intentional and effective. There was both the intention and the act of burning a neighbour's house. Which neighbour's house was in fact burnt is a mere accident which does not alter the character of the act, and compensation is due to the owner of whatever house was burnt by this act of formal injustice. It is only fair to add that the majority of modern Roman Catholic moral theologians are all agreed in rejecting the authority of St. Alphonsus on this point.
After this discussion of the duty and obligation of making restitution in general, we may
now proceed to a consideration of the details of this duty,
(1) The person to whom restitution is due.
As a general rule restitution is to be made to him whose right has been violated. Thus it is the person injured who receives
compensation, and property is to be restored to its rightful owner. This is clear common sense. Strict commutative justice is
obviously not satisfied by the Robin Hood practice of "restoring" to the poor the property stolen from the rich, nor is
Peter recompensed by the enrichment of Paul. Yet from this general rule there are certain exceptions,
(a) If the property requiring to be restored belongs to one person but is in the use and custody of another, it should be restored
to the latter rather than to the owner. If I have borrowed a book and it is stolen from me, it should be restored to me and not to
the person from whom I borrowed it. The reason is that during the period of loan the person who suffers loss from the theft is the
borrower, not the owner,
(b) If the injured person is a society or corporation, restitution should normally be made to the officers of the society. But, if
the society is an illegal or vicious one (Roman Catholic theologians usually mention in this connection Freemasons or Socialists;
we may, perhaps, instance Fascists or white-slavers), restitution should be made in the form either of gifts to individual
members of the society or of donations to the poor; since to restore to the society as such would be to encourage and facilitate
its evil purposes,
(c) If the injured body is the State, restitution should be made to the State. This can usually be done, either through the
appropriate State official or by burning Treasury notes or stamps. It is also held that it may sometimes be done by almsgiving, on
the ground that the relief of the poor is an obligation of the State's, and that the State is consequently enriched by having a
portion of that work done privately. In a modern State, however, this argument is doubtfully valid, since the poor recipients of
the alms would not thereby be legally debarred, and would not, probably, in fact refrain from claiming whatever State benefits
they are entitled to. Roman Catholics also often justify a form of restitution to the State which consists in compensating
individuals or bodies who have been unjustly treated by the State, and to whom therefore the State owes compensation. On this
ground it is judged legitimate for one who has robbed the State to give the proceeds of his robbery to the Church, which has been
unjustly deprived by the State of some of her rightful possessions. But this seems to be of doubtful morality and expediency. Of
doubtful expediency, because it must bring the Church into increased odium with State and individuals. Of doubtful morality,
because it involves the Church in being a receiver of stolen goods, and, if the action be performed on the advice of a confessor
who is an officer of the Church, of being a receiver of stolen goods knowing them to have been stolen. Moreover, it involves the
difficult and doubtful principle that an aggrieved party has the right to private or secret compensation, that is, that a person
who has had his property stolen may rightfully steal it or its equivalent back again. This principle is tenable as a piece of
natural law, but its application is exceedingly dangerous, and it is generally forbidden in civilised countries, where the law
courts exist to make it unnecessary. For it is "to take the law into one's own hands". If the Church has been despoiled,
her remedy against the State is in the courts. If the courts give an unjust decision, the principle of secret compensation is
only legitimate if the injustice is certain. This certainty is always hard to attain. For these reasons a confessor would be
ill-advised to recommend a penitent to make restitution to the State in this form.
If the rightful owner is unknown, and remains unknown after every reasonable effort to identify him has been made, a possessor in good faith may retain the property, which is assimilated to a thing found. Such, at least, is now the common opinion, though St. Thomas held that it should be given to the poor. That it should be given to the poor is certainly the duty of a possessor in bad faith, for it is manifestly unjust that an evil-doer should profit by his evil-doing. Thus if, in the press of a large football crowd, I steal someone's gold watch and afterwards repent, my first duty is to try and discover its owner, if I can do so without giving myself away - for I am not bound to betray myself and make myself liable to prosecution. If I fail in this, as I almost certainly should, I may not pocket .the watch, or give it to my son. I must sell it, and give its price away to the poor or to some charity. The reason is partly that given, that I may not profit by my evil-doing, and partly that I have injured the community as well as the owner by my lawless theft, and the community at least I can and should recompense.
Where the rightful owner is uncertain and doubtful, if the doubt lies between two or three people only, the thing should be divided fairly between them. If the doubt lies between a large number of individuals, restitution should take the form of almsgiving. If the doubt lies between a large number of people all living in the same locality, then the alms should be given to the poor of that locality. For example, if a firm of chain stores discovers that the manager of one of its branches has consistently been giving short weight, they should make restitution either by giving over-weight for a time, if there is a reasonable probability that their customers remain the same persons substantially (e.g. if it is a branch in a small suburb); or, if it is a branch in the centre of a large town, where the customers are constantly changing, but are for the most part residents of that town, by subscribing to a local charity; or, if the customers come, substantially, from a wider area than the town, to a national charity.
(2) Generally speaking, restitution should
be made at the first possible opportunity.
For delay involves continued enjoyment of that which is not one's own to the loss and detriment of its rightful owner, and this is
unjust. To postpone restitution is, therefore, sinful, unless there is adequate reason. A confessor must always demand of a
penitent an intention to restore at the earliest possible moment. If complete restoration is not immediately possible, he should
urge a partial restoration, and if the penitent refuses to promise restoration, or if, having promised, he persists in an
unjustifiable omission to do so in fact, the confessor should refuse absolution. For the penitent is clearly not rightly
disposed.
(3) A possessor in good faith need do no more than put the object that he wrongfully possesses at the disposal of the owner, who may come and fetch it. He is not bound to take or send it to the owner at his own expense. A possessor in bad faith, however, must hand the property back to its owner in the place where it would have been if it had never been wrongly removed, or wherever else the owner may desire; except that he may charge the owner whatever expenses the owner would himself have incurred if he had never lost possession of the property. If the property is lost in transit, the possessor in bad faith is liable to make it good.
(4) Restitution may be made in any way, which effectively restores the property unjustly possessed to its owner, or adequately compensates the injured person for the damage that he has suffered. Accordingly, stolen property may be returned secretly and anonymously, or if the thing itself has been lost or destroyed, its equivalent in money may be so restored. One way of effecting this is for a penitent to hand the property to his confessor, and for the confessor to restore it to its owner. In this way the claim of commutative justice is satisfied without any risk or danger of a betrayal of the identity of the wrongful possessor. Another method of restoration is by gifts, though in this case care must be taken that the recipient of the gifts does not retaliate with counter-gifts and so render the repayment illusory.
Restitution is a stringent demand of commutative justice.
There are, however, certain circumstances, which excuse from this duty, either altogether or for a time.
The causes, which excuse altogether, are these:
(1) Condonation, express or implied or presumed.
If the person wronged expressly forgives the injury and waives his claim to restitution or compensation, the injurer is clearly
free from any further liability. But for this to happen, the condonation must be free and voluntary. If it is extorted by force
or threats, or if it is based on a misrepresentation of the facts, the condonation is invalid, and the injurer is still morally
bound to make restitution. Condonation is implied or presumed where it seems probable, in the judgement of a prudent observer,
that the injured party would freely waive his claim to restitution, if he were asked. For example, a father may be presumed to
condone a theft from him by his son, in the sense that he will not insist on the article's being restored; for he is angry, not
so much because his son took it, as because his son took it without asking him.
(2) Compensation.
This happens where there are three parties and two debts. That is, A owes B, and C owes A, and B cannot get payment out of A, and
therefore takes in compensation C's debt to A. When he has succeeded in getting C to pay him what C owes to A, both debts are
extinguished. Generally speaking, this kind of settlement requires either the consent of all three parties or authorisation by the
law courts. The advice discussed above - namely, that of paying to the Church money due to the State, in compensation for her
wrongs at the hands of the State - may be regarded as an instance of this form of compensation. But in that case the two
conditions just mentioned are neither present - agreement between the parties or legal sanction - and the remarks made there apply
here. The money owed by C to A is rightfully A's and, unless the law so orders it, cannot be used against A's will, even for the
extinguishment of A's debts, without injustice.
(3) Prescription.
In accordance with the enactments of the civil law, the lapse of a certain time destroys the obligation to make restitution,
except in the case of a possessor in bad faith.
(4) Extreme necessity destroys the obligation to restore, for no man is bound to do the impossible.
The causes, which excuse from the obligation to make restitution for a time only are:
(1) Bankruptcy.
Bankruptcy, whether by voluntary arrangement or enforced at law, is a means of arriving at a temporary settlement in the best
interest of creditors and debtors alike. The terms of the agreement or order are morally binding, and the debtor is guilty of
injustice if he fails to disclose any of his assets, or makes any other contracts or gifts without the knowledge of the creditors,
or against the order of the court. The debtor is allowed, however, to retain from his assets enough to support himself and his
family, and to start up in some gainful employment. Nevertheless the debts extinguished by the bankruptcy agreement are not, in
conscience, really extinguished, but only suspended. Because the creditors only agree to receive back a part of what is due to
them because they cannot help it and are unable to get more. If, therefore, the debtor later becomes rich, he ought then to regard
himself as morally bound to pay back his creditors in full. Some moral theologians argue, however, that in England and in other
countries where the civil laws declare the bankrupt to be free of all further obligations, the debtor is not thus bound in
conscience, because the creditors must be deemed to consent to the law and to have waived their rights. But this does not seem to
be convincing. The creditors cannot reasonably be deemed to be satisfied with a partial repayment of the debt, and their consent
to the law and waiving of their rights would appear to be extremely doubtful.
(2) Physical or moral inability to
make restitution.
From the point of view of the confessor this is the most important and most frequent cause of non-restitution. Physical inability
occurs when the injurer has no means available with which to make restitution. So long as this condition lasts, restitution is
clearly impossible, and is therefore not a duty. But the duty revives the moment the injurer acquires the means of restitution.
Moral inability means an inability to make restitution without serious loss or inconvenience to oneself or to someone else. Of
course, the loss or inconvenience must considerably outweigh the loss or inconvenience suffered by the injured party in not
receiving compensation. Further, the duty of restitution is not destroyed, but only temporarily postponed.
All this, then, being understood, moral inability to restore occurs,
(a) when the debtor would by immediate payment impoverish himself, and make himself unable to continue in his own occupation. In
this case he may postpone repayment, but must practise a rigorous economy, in order to be able to repay as soon as possible,
(b) Where immediate repayment would involve a considerable loss which delay would avoid. For example, if securities had to be
realised at a low price, when there is every reason to believe that in a short while they will be much more valuable,
(c) Where restitution involves a loss of a higher order; that is to say, where it cannot be made without loss of honour or
reputation. Thus a thief need not restore immediately if that exposes him to a risk of detection, which a little delay or a more
circuitous method would avoid. An unfaithful wife need not repair the injury inflicted on her husband - e.g. by the burden of
maintaining a child not his own - if to do so immediately would expose her to detection. This excuse only lasts as long as the
impossibility of making secret restitution without danger to a good of a higher order lasts,
(d) Where restitution would lead to a greater evil to the owner or to a third party. For example, if to return a sword to its
owner would result in his committing murder or suicide with it; or if it is certain that with the money one has paid back the
creditor will indulge in debauchery. This excuse holds good only so long as the danger of the resulting evil is real, and is only
valid if the postponement of restitution is effective in preventing the evil. If, for example, the creditor is a rich man and has
other money to spend on his debauchery, there is no ground for deferring to restore to him what one owes.
There is much else which might be said on justice and the acts that are opposed to it, as also on the potential parts of justice, religion and so on. All that has been attempted here is a brief outline of the general principles involved in the practice of the virtue of justice. Upon the practice of justice is based all virtuous living, and the duties of love cannot be either known or performed except the humbler and less exalted concept of justice be understood. For to love our fellow men and to be generous to them means to give them more than is their strict due, and to be content ourselves with less than our rights. And how shall we fulfil this commandment unless we first know what is their due, that we may surpass it, and what is our right, that we may waive it? Moreover, upon the recognition and observance of rights is based all ordered human society. Without justice, are lost all the conditions that facilitate the good life. For amid lawlessness, force and violence the virtues are destroyed, or survive only in secluded corners remote from the world's strife and stress. Justice, therefore, is rightly called a cardinal virtue, and the queen of the virtues. When men understand her and love her, they are not far from the Kingdom of God.