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St. Thomas Aquinas
Summa Theologica

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  • SECOND PART
    • Aquin.: SMT SS Q[1] Out. Para. 1/4 - SECOND PART OF THE SECOND PART (SS) (QQ[1]-189)
      • Aquin.: SMT SS Q[57] Out. Para. 1/3 - ON JUSTICE (QQ[57]-62)
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Aquin.: SMT SS Q[57] Out. Para. 1/3 - ON JUSTICE (QQ[57]-62)



OF RIGHT (FOUR ARTICLES)

After considering prudence we must in due sequence consider justice, the
consideration of which will be fourfold:

(1) Of justice;

(2) Of its parts;

(3) Of the corresponding gift;

(4) Of the precepts relating to justice.

Aquin.: SMT SS Q[57] Out. Para. 2/3

Four points will have to be considered about justice: (1) Right; (2)
Justice itself; (3) Injustice; (4) Judgment.

Aquin.: SMT SS Q[57] Out. Para. 3/3

Under the first head there are four points of inquiry:

(1) Whether right is the object of justice?

(2) Whether right is fittingly divided into natural and positive right?

(3) Whether the right of nations is the same as natural right?

(4) Whether right of dominion and paternal right are distinct species?


Aquin.: SMT SS Q[57] A[1] Thes. Para. 1/1

Whether right is the object of justice?

Aquin.: SMT SS Q[57] A[1] Obj. 1 Para. 1/1

OBJ 1: It would seem that right is not the object of justice. For the
jurist Celsus says [*Digest. i, 1; De Just. et Jure 1] that "right is the
art of goodness and equality." Now art is not the object of justice, but
is by itself an intellectual virtue. Therefore right is not the object of
justice.

Aquin.: SMT SS Q[57] A[1] Obj. 2 Para. 1/1

OBJ 2: Further, "Law," according to Isidore (Etym. v, 3), "is a kind of
right." Now law is the object not of justice but of prudence, wherefore
the Philosopher [*Ethic. vi, 8] reckons "legislative" as one of the parts
of prudence. Therefore right is not the object of justice.

Aquin.: SMT SS Q[57] A[1] Obj. 3 Para. 1/1

OBJ 3: Further, justice, before all, subjects man to God: for Augustine
says (De Moribus Eccl. xv) that "justice is love serving God alone, and
consequently governing aright all things subject to man." Now right [jus]
does not pertain to Divine things, but only to human affairs, for Isidore
says (Etym. v, 2) that "'fas' is the Divine law, and 'jus,' the human
law." Therefore right is not the object of justice.

Aquin.: SMT SS Q[57] A[1] OTC Para. 1/1

On the contrary, Isidore says (Etym. v, 2) that "'jus' [right] is so
called because it is just." Now the "just" is the object of justice, for
the Philosopher declares (Ethic. v, 1) that "all are agreed in giving the
name of justice to the habit which makes men capable of doing just
actions."

Aquin.: SMT SS Q[57] A[1] Body Para. 1/1

I answer that, It is proper to justice, as compared with the other
virtues, to direct man in his relations with others: because it denotes a
kind of equality, as its very name implies; indeed we are wont to say
that things are adjusted when they are made equal, for equality is in
reference of one thing to some other. On the other hand the other virtues
perfect man in those matters only which befit him in relation to
himself. Accordingly that which is right in the works of the other
virtues, and to which the intention of the virtue tends as to its proper
object, depends on its relation to the agent only, whereas the right in a
work of justice, besides its relation to the agent, is set up by its
relation to others. Because a man's work is said to be just when it is
related to some other by way of some kind of equality, for instance the
payment of the wage due for a service rendered. And so a thing is said to
be just, as having the rectitude of justice, when it is the term of an
act of justice, without taking into account the way in which it is done
by the agent: whereas in the other virtues nothing is declared to be
right unless it is done in a certain way by the agent. For this reason
justice has its own special proper object over and above the other
virtues, and this object is called the just, which is the same as
"right." Hence it is evident that right is the object of justice.

Aquin.: SMT SS Q[57] A[1] R.O. 1 Para. 1/1

Reply OBJ 1: It is usual for words to be distorted from their original
signification so as to mean something else: thus the word "medicine" was
first employed to signify a remedy used for curing a sick person, and
then it was drawn to signify the art by which this is done. In like
manner the word "jus" [right] was first of all used to denote the just
thing itself, but afterwards it was transferred to designate the art
whereby it is known what is just, and further to denote the place where
justice is administered, thus a man is said to appear "in jure" [*In
English we speak of a court of law, a barrister at law, etc.], and yet
further, we say even that a man, who has the office of exercising
justice, administers the jus even if his sentence be unjust.

Aquin.: SMT SS Q[57] A[1] R.O. 2 Para. 1/1

Reply OBJ 2: Just as there pre-exists in the mind of the craftsman an
expression of the things to be made externally by his craft, which
expression is called the rule of his craft, so too there pre-exists in
the mind an expression of the particular just work which the reason
determines, and which is a kind of rule of prudence. If this rule be
expressed in writing it is called a "law," which according to Isidore
(Etym. v, 1) is "a written decree": and so law is not the same as right,
but an expression of right.

Aquin.: SMT SS Q[57] A[1] R.O. 3 Para. 1/1

Reply OBJ 3: Since justice implies equality, and since we cannot offer
God an equal return, it follows that we cannot make Him a perfectly just
repayment. For this reason the Divine law is not properly called "jus"
but "fas," because, to wit, God is satisfied if we accomplish what we
can. Nevertheless justice tends to make man repay God as much as he can,
by subjecting his mind to Him entirely.


Aquin.: SMT SS Q[57] A[2] Thes. Para. 1/1

Whether right is fittingly divided into natural right and positive right?

Aquin.: SMT SS Q[57] A[2] Obj. 1 Para. 1/1

OBJ 1: It would seem that right is not fittingly divided into natural
right and positive right. For that which is natural is unchangeable, and
is the same for all. Now nothing of the kind is to be found in human
affairs, since all the rules of human right fail in certain cases, nor do
they obtain force everywhere. Therefore there is no such thing as natural
right.

Aquin.: SMT SS Q[57] A[2] Obj. 2 Para. 1/1

OBJ 2: Further, a thing is called "positive" when it proceeds from the
human will. But a thing is not just, simply because it proceeds from the
human will, else a man's will could not be unjust. Since then the "just"
and the "right" are the same, it seems that there is no positive right.

Aquin.: SMT SS Q[57] A[2] Obj. 3 Para. 1/1

OBJ 3: Further, Divine right is not natural right, since it transcends
human nature. In like manner, neither is it positive right, since it is
based not on human, but on Divine authority. Therefore right is
unfittingly divided into natural and positive.

Aquin.: SMT SS Q[57] A[2] OTC Para. 1/1

On the contrary, The Philosopher says (Ethic. v, 7) that "political
justice is partly natural and partly legal," i.e. established by law.

Aquin.: SMT SS Q[57] A[2] Body Para. 1/1

I answer that, As stated above (A[1]) the "right" or the "just" is a
work that is adjusted to another person according to some kind of
equality. Now a thing can be adjusted to a man in two ways: first by its
very nature, as when a man gives so much that he may receive equal value
in return, and this is called "natural right." In another way a thing is
adjusted or commensurated to another person, by agreement, or by common
consent, when, to wit, a man deems himself satisfied, if he receive so
much. This can be done in two ways: first by private agreement, as that
which is confirmed by an agreement between private individuals; secondly,
by public agreement, as when the whole community agrees that something
should be deemed as though it were adjusted and commensurated to another
person, or when this is decreed by the prince who is placed over the
people, and acts in its stead, and this is called "positive right."

Aquin.: SMT SS Q[57] A[2] R.O. 1 Para. 1/1

Reply OBJ 1: That which is natural to one whose nature is unchangeable,
must needs be such always and everywhere. But man's nature is changeable,
wherefore that which is natural to man may sometimes fail. Thus the
restitution of a deposit to the depositor is in accordance with natural
equality, and if human nature were always right, this would always have
to be observed; but since it happens sometimes that man's will is
unrighteous there are cases in which a deposit should not be restored,
lest a man of unrighteous will make evil use of the thing deposited: as
when a madman or an enemy of the common weal demands the return of his
weapons.

Aquin.: SMT SS Q[57] A[2] R.O. 2 Para. 1/1

Reply OBJ 2: The human will can, by common agreement, make a thing to be
just provided it be not, of itself, contrary to natural justice, and it
is in such matters that positive right has its place. Hence the
Philosopher says (Ethic. v, 7) that "in the case of the legal just, it
does not matter in the first instance whether it takes one form or
another, it only matters when once it is laid down." If, however, a thing
is, of itself, contrary to natural right, the human will cannot make it
just, for instance by decreeing that it is lawful to steal or to commit
adultery. Hence it is written (Is. 10:1): "Woe to them that make wicked
laws."

Aquin.: SMT SS Q[57] A[2] R.O. 3 Para. 1/1

Reply OBJ 3: The Divine right is that which is promulgated by God. Such
things are partly those that are naturally just, yet their justice is
hidden to man, and partly are made just by God's decree. Hence also
Divine right may be divided in respect of these two things, even as human
right is. For the Divine law commands certain things because they are
good, and forbids others, because they are evil, while others are good
because they are prescribed, and others evil because they are forbidden.


Aquin.: SMT SS Q[57] A[3] Thes. Para. 1/1

Whether the right of nations is the same as the natural right?

Aquin.: SMT SS Q[57] A[3] Obj. 1 Para. 1/1

OBJ 1: It would seem that the right of nations is the same as the
natural right. For all men do not agree save in that which is natural to
them. Now all men agree in the right of nations; since the jurist
[*Ulpian: Digest. i, 1; De Just. et Jure i] "the right of nations is that
which is in use among all nations." Therefore the right of nations is the
natural right.

Aquin.: SMT SS Q[57] A[3] Obj. 2 Para. 1/1

OBJ 2: Further, slavery among men is natural, for some are naturally
slaves according to the Philosopher (Polit. i, 2). Now "slavery belongs
to the right of nations," as Isidore states (Etym. v, 4). Therefore the
right of nations is a natural right.

Aquin.: SMT SS Q[57] A[3] Obj. 3 Para. 1/1

OBJ 3: Further, right as stated above (A[2]) is divided into natural and
positive. Now the right of nations is not a positive right, since all
nations never agreed to decree anything by common agreement. Therefore
the right of nations is a natural right.

Aquin.: SMT SS Q[57] A[3] OTC Para. 1/1

On the contrary, Isidore says (Etym. v, 4) that "right is either
natural, or civil, or right of nations," and consequently the right of
nations is distinct from natural right.

Aquin.: SMT SS Q[57] A[3] Body Para. 1/2

I answer that, As stated above (A[2]), the natural right or just is that
which by its very nature is adjusted to or commensurate with another
person. Now this may happen in two ways; first, according as it is
considered absolutely: thus a male by its very nature is commensurate
with the female to beget offspring by her, and a parent is commensurate
with the offspring to nourish it. Secondly a thing is naturally
commensurate with another person, not according as it is considered
absolutely, but according to something resultant from it, for instance
the possession of property. For if a particular piece of land be
considered absolutely, it contains no reason why it should belong to one
man more than to another, but if it be considered in respect of its
adaptability to cultivation, and the unmolested use of the land, it has a
certain commensuration to be the property of one and not of another man,
as the Philosopher shows (Polit. ii, 2).

Aquin.: SMT SS Q[57] A[3] Body Para. 2/2

Now it belongs not only to man but also to other animals to apprehend a
thing absolutely: wherefore the right which we call natural, is common to
us and other animals according to the first kind of commensuration. But
the right of nations falls short of natural right in this sense, as the
jurist [*Digest. i, 1; De Just. et Jure i] says because "the latter is
common to all animals, while the former is common to men only." On the
other hand to consider a thing by comparing it with what results from it,
is proper to reason, wherefore this same is natural to man in respect of
natural reason which dictates it. Hence the jurist Gaius says (Digest. i,
1; De Just. et Jure i, 9): "whatever natural reason decrees among all
men, is observed by all equally, and is called the right of nations."
This suffices for the Reply to the First Objection.

Aquin.: SMT SS Q[57] A[3] R.O. 2 Para. 1/1

Reply OBJ 2: Considered absolutely, the fact that this particular man
should be a slave rather than another man, is based, not on natural
reason, but on some resultant utility, in that it is useful to this man
to be ruled by a wiser man, and to the latter to be helped by the former,
as the Philosopher states (Polit. i, 2). Wherefore slavery which belongs
to the right of nations is natural in the second way, but not in the
first.

Aquin.: SMT SS Q[57] A[3] R.O. 3 Para. 1/1

Reply OBJ 3: Since natural reason dictates matters which are according
to the right of nations, as implying a proximate equality, it follows
that they need no special institution, for they are instituted by natural
reason itself, as stated by the authority quoted above


Aquin.: SMT SS Q[57] A[4] Thes. Para. 1/1

Whether paternal right and right of dominion should be distinguished as
special species?

Aquin.: SMT SS Q[57] A[4] Obj. 1 Para. 1/1

OBJ 1: It would seem that "paternal right" and "right of dominion"
should not be distinguished as special species. For it belongs to justice
to render to each one what is his, as Ambrose states (De Offic. i, 24).
Now right is the object of justice, as stated above (A[1]). Therefore
right belongs to each one equally; and we ought not to distinguish the
rights of fathers and masters as distinct species.

Aquin.: SMT SS Q[57] A[4] Obj. 2 Para. 1/1

OBJ 2: Further, the law is an expression of what is just, as stated
above (A[1], ad 2). Now a law looks to the common good of a city or
kingdom, as stated above (FS, Q[90], A[2]), but not to the private good
of an individual or even of one household. Therefore there is no need for
a special right of dominion or paternal right, since the master and the
father pertain to a household, as stated in Polit. i, 2.

Aquin.: SMT SS Q[57] A[4] Obj. 3 Para. 1/1

OBJ 3: Further, there are many other differences of degrees among men,
for instance some are soldiers, some are priests, some are princes.
Therefore some special kind of right should be allotted to them.

Aquin.: SMT SS Q[57] A[4] OTC Para. 1/1

On the contrary, The Philosopher (Ethic. v, 6) distinguishes right of
dominion, paternal right and so on as species distinct from civil right.

Aquin.: SMT SS Q[57] A[4] Body Para. 1/1

I answer that, Right or just depends on commensuration with another
person. Now "another" has a twofold signification. First, it may denote
something that is other simply, as that which is altogether distinct; as,
for example, two men neither of whom is subject to the other, and both of
whom are subjects of the ruler of the state; and between these according
to the Philosopher (Ethic. v, 6) there is the "just" simply. Secondly a
thing is said to be other from something else, not simply, but as
belonging in some way to that something else: and in this way, as regards
human affairs, a son belongs to his father, since he is part of him
somewhat, as stated in Ethic. viii, 12, and a slave belongs to his
master, because he is his instrument, as stated in Polit. i, 2 [*Cf.
Ethic. viii, 11]. Hence a father is not compared to his son as to another
simply, and so between them there is not the just simply, but a kind of
just, called "paternal." In like manner neither is there the just simply,
between master and servant, but that which is called "dominative." A
wife, though she is something belonging to the husband, since she stands
related to him as to her own body, as the Apostle declares (Eph. 5:28),
is nevertheless more distinct from her husband, than a son from his
father, or a slave from his master: for she is received into a kind of
social life, that of matrimony, wherefore according to the Philosopher
(Ethic. v, 6) there is more scope for justice between husband and wife
than between father and son, or master and slave, because, as husband and
wife have an immediate relation to the community of the household, as
stated in Polit. i, 2,5, it follows that between them there is "domestic
justice" rather than "civic."

Aquin.: SMT SS Q[57] A[4] R.O. 1 Para. 1/1

Reply OBJ 1: It belongs to justice to render to each one his right, the
distinction between individuals being presupposed: for if a man gives
himself his due, this is not strictly called "just." And since what
belongs to the son is his father's, and what belongs to the slave is his
master's, it follows that properly speaking there is not justice of
father to son, or of master to slave.

Aquin.: SMT SS Q[57] A[4] R.O. 2 Para. 1/1

Reply OBJ 2: A son, as such, belongs to his father, and a slave, as
such, belongs to his master; yet each, considered as a man, is something
having separate existence and distinct from others. Hence in so far as
each of them is a man, there is justice towards them in a way: and for
this reason too there are certain laws regulating the relations of father
to his son, and of a master to his slave; but in so far as each is
something belonging to another, the perfect idea of "right" or "just" is
wanting to them.

Aquin.: SMT SS Q[57] A[4] R.O. 3 Para. 1/1

Reply OBJ 3: All other differences between one person and another in a
state, have an immediate relation to the community of the state and to
its ruler, wherefore there is just towards them in the perfect sense of
justice. This "just" however is distinguished according to various
offices, hence when we speak of "military," or "magisterial," or
"priestly" right, it is not as though such rights fell short of the
simply right, as when we speak of "paternal" right, or right of
"dominion," but for the reason that something proper is due to each
class of person in respect of his particular office.





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