13. The Virtue of Justice
GENERAL OUTLOOK OF JUSTICE
24. Definition of Justice
In Sacred Scripture, the term justice often means the whole array of virtues: full and complete moral goodness (cf. Mt 5:6, 20). In other passages, it means the state of sanctifying grace (cf. Rom 4:3). In other occasions, it also means the cardinal virtue of justice proper, which can be defined as the perpetual and constant will to render to each one his right.1
The three essential properties of justice directly follow from the definition:
i) Justice always refers to another person. Strictly speaking, there are no obligations of justice toward oneself.
ii) The object of justice is not a free gift, but something that is strictly due.
iii) Justice does not demand an approximate compensation, but only what is exactly due, neither more nor less.
The differences between fraternal charity and justice are worth noting. Justice is based on the distinction between persons, while charity is based on their union through love. Out of justice, we give our neighbor what is his; out of charity, we give what is ours. Charity is superior to justice, but the duties of justice are stricter than those of charity.
A peculiar trait of justice is that it does not only aim at the right mean dictated by reason, as the other virtues do, but that it also aims at the mean of what is due, or objective mean, which is often quantifiable.
SUBJECTIVE PARTS OF JUSTICE
25. Division of the Subjective Parts of Justice
Modern authors usually distinguish three kinds of justice: legal justice (duties of the individual toward the community), distributive justice (duties of the community toward the individual), and commutative justice (duties of an individual toward other individuals).2
This division, however, has not gone unchallenged, with objections arising as early as the sixteenth century. The proper way to classify virtues is according to their primary end, not according to the persons to whom they are directed. Therefore, the traditional division of Aristotle and St. Thomas3 seems to be more appropriate:
· Legal, general, or social justice is directly and primarily aimed at the common good. These terms are taken here as equivalent.
· Particular justice is directed to the private good. It can be further divided into:
o commutative justice,
o distributive justice.
26. General Justice
General justice is the stable determination to render to civil or ecclesiastical society what is its due.4
Man has a social nature. Since he needs the company (societas) of others, he has duties toward this society. The virtue that inclines the will to fulfill these social duties is called general justice, because it aims at the general, social, or common good, and also because it directs man’s actions to that good in a general way. This virtue moves citizens to pay their taxes and obey the law, civil servants to fulfill their duties, legislators to make just laws, judges to apply them properly, etc. It is also called legal justice because its main function is establishing and obeying laws.
General justice is especially necessary for the common good. When it is not practiced, peace is disturbed and citizens are sorely harmed, especially if the rulers are the ones breaking it by issuing unjust laws.
26a) Taxes
Citizens violate general justice by breaking civil laws and, specifically, by not paying their taxes.
From the moral point of view, just taxes must be paid, since they are indispensable for society (cf. Mt 17:26–27; 22:21).5 This is a serious obligation of conscience (cf. Rom 13:5–7). Restitution must be made for tax evasion. It is not only violations of commutative justice that require restitution. In some occasions, legal and distributive justice also impose an obligation to make restitution, because they are required by justice as well. In this case, the recipient of the restitution can be society itself or the persons whom society should help—the poor. But the amount to be returned is often difficult to assess.6
Like all laws, tax laws should, in principle, be held as just, unless there is evidence to the contrary. Tax laws, however, should be carried out with some lenience, since at times, because of widespread tax evasion, tax rates are higher than it would otherwise be necessary. In these cases, strict observance would penalize honest taxpayers. The extent of that tolerance, though, is difficult to determine; it depends on the time and place, and sometimes, there should be none.
In theory, if there is evidence that public funds are used for illicit purposes—for example, financing pornographic movies, sterilization programs, or abortion—one may deduct a proportional amount from one’s taxes. Nobody is obliged to pay unjust taxes, but the evidence must be solid. An upright conscience is thus needed, and all possible scandal must be avoided.
There is no objection, of course, to using every available legal means to reduce one’s taxes. This is not a breach of the law, but rather a strict fulfillment of all its terms and provisions.
26b) Cooperation in Public Affairs
Citizens must feel concern for the affairs of their community.7 Everyone must cooperate in his own position so that society at large, and all the natural or voluntary associations within it, may enjoy harmony, peace, justice, and efficiency.
The primary cooperation consists in fulfilling one’s patent duties: respecting natural morals in dealing with other citizens, obeying just laws, paying taxes.
They should also be willing to vote in elections for public office and for other associations to which they may belong (unions, professional associations, committees, cultural or leisure associations). In casting their vote, citizens must consider in conscience the governmental programs (morality, effectiveness, convenience, and feasibility) and the candidates (rectitude, competence). After careful consideration, the voters should elect the most trustworthy candidate—or, if worse comes to worst, the one they mistrust less. Neglecting this duty without just cause may easily be an objectively serious transgression.
Aside from this, their sense of solidarity must move citizens to actively participate in the smooth running of these societies. They should be willing to devote time and effort to tasks that will benefit the community, each according to his position and abilities. Some could take care of organizing the town festival, while others could enter politics in a professional way. In any case, they should be moved by a desire to serve all the members of their respective communities. Thus, in a most natural and spontaneous way, citizens directly contribute to the common good through their goodwill, honesty, experience, and dedication.
The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel. Refusing obedience to civil authorities, when their demands are contrary to those of an upright conscience, finds its justification in the distinction between serving God and serving the political community.…
Armed resistance to oppression by political authority is not legitimate, unless all the following conditions are met: 1) there is certain, grave, and prolonged violation of fundamental rights; 2) all other means of redress have been exhausted; 3) such resistance will not provoke worse disorders; 4) there is well-founded hope of success; and 5) it is impossible reasonably to foresee any better solution.8
27. Particular Justice
Particular justice is the stable determination to give to each physical or juridical person what is his due. Its two main species are commutative justice and distributive justice.9
27a) Commutative Justice
Commutative justice is a private person’s stable determination to give another private person what is strictly his due. There must be an absolute equality between what is given and what is received.
The term commutative refers to the commutations or exchanges that it primarily covers, like buying and selling. It also applies to other subjects, like the matter of the last six commandments of the Decalogue.10
Commutative justice is not stricter than legal justice or distributive justice. Just like these, it requires restitution when transgressed. Here, however, the object or amount of the restitution is much easier to determine, and thus the obligation is more pressing.
27b) Distributive Justice
Distributive justice is the stable determination that inclines the ruler of a community to equitably distribute burdens and honors among its members according to their capacities and merits. Unlike commutative justice, it does not require absolute equality, but rather proportional equality.11
The more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin.12
27c) Vindictive Justice
We can still distinguish a third kind of particular justice, vindictive justice, which inclines the ruler of a community to punish crime with the right penalties. It can be considered as part of distributive justice if we focus on the determination of the appropriate penalty. It will also be a part of legal justice if we consider its impact on the common good; or of commutative justice, since the judge is obliged to punish crime, and would not fulfill the duties of his office if he fails to do so.
POTENTIAL PARTS OF JUSTICE
28. Division of the Potential Parts of Justice
The potential parts of justice are virtues with the same general object as justice, but lacking the perfection of justice in some aspect.
· Virtues that lack the perfect equality of justice:
o Religion is the virtue that inclines man to give to God his due. But we will never be able to give God what he deserves, or even something equivalent to what we have received from him.
o Piety inclines man to give to his parents what is their due. Again, children cannot give to their parents something that is equivalent to what they have received from them—life.
o Reverence inclines one to give due honor to persons of great virtue and dignity. But virtue can never be properly rewarded in this life.
· Virtues that lack the strict obligation of justice—what is received is not strictly due:
o Sincerity inclines one to say the truth and always avoid lies.
o Gratitude inclines one to reward in some way the benefits that have been received.
o Vindication moves one to seek restitution for the sins of others. It should not be confused with revenge, which is a sin.
o Generosity inclines one to moderate love for earthly goods and use them properly for one’s own and others’ benefit, and for honoring God.
o Politeness inclines one to be pleasant in dealing with others.
o Equity or epikeia inclines one to ignore the letter of the law when there is a just cause, in order to better follow the presumed intention of the legislator.
RIGHTS OF THE PERSON
29. Rights of the Person
We have defined justice as the permanent determination to give each one what is strictly his due. We will examine now what is due to a person, that is, the rights of the person or subjective rights.
Right of the person, or subjective right, is the capacity to do, own, demand, or omit something. We further distinguish the active right (that is, the capacity or moral faculty that we have just defined) from the passive right (which is the object or action that one is entitled to do, own, demand, or omit. Here, the term subjective literally means “of the subject,” bearing no relation at all to the subjective appreciation of the right.
We should also clarify that it is a moral faculty, not a physical capacity. This faculty must be respected by others, creating a corresponding obligation of not infringing on it. Thus, every subjective right corresponds to a duty for others.
30. Kinds of Rights of the Person
Subjective rights can be classified according to their origin and according to their strictness. If we look at their origin, subjective rights stem from objective laws. We have already seen that objective laws include eternal law, natural law, divine positive law, and human laws. Accordingly, subjective rights can be divided as follows:
· Natural rights are subjective rights belonging to man by virtue of the very principles of human nature. These are, for example, the rights to self-defense and private property.
o The more common expression human rights usually refers to natural rights and their necessary protection by positive law.13 However, their connection with eternal law is often neglected, thus depriving them of their deepest foundation.
o Rights that are possessed by the very fact of being born or, rather, of coming into existence, are called innate rights. Examples of innate rights include the right to life and to being nourished by one’s parents. Acquired rights are those that are possessed because of a contingent act, such as ownership of something that one has bought.
o Jus gentium (“law of peoples”) is a series of natural rights that are not immediately known, but are necessarily deduced from natural rights. For this reason, they are common to different peoples or nations. It is somehow in between natural law proper and civil law. Not all authors agree on this, however, and it is often understood in a different but related sense—that of international law, whether written or not.
· Divine positive rights are those rights that are conferred upon man by a special divine decision, such as the right to receive the sacraments or to hear the preaching of the Gospel.
· Civil or ecclesiastical rights are those that stem from civil or ecclesiastical law. Thus, the faithful have the right to receive the sacraments from their parish priest, and the citizens are entitled to have their life and property protected by the civil authorities.
On the other hand, rights can be strict or non-strict. Non-strict rights, or rights in the broader sense, are those whose violation is not an injustice, but simply a lack of equity. For example, a person who has rendered valuable services has the “right” to be commended. Strict rights, however, are so closely united to the person that they cannot be taken away without injuring the person.
Strict rights can be further divided into real rights (ius in re) and personal rights (ius ad rem). The former refers to what is actually possessed; the latter refers to what is not yet in one’s possession. Thus, we have a real right to the money that we have, and a personal right to the money that is owed us. In principle, the latter does not entitle to take the money at will, but only to demand its repayment. Thus, personal right is said to lead to real right. Strict real right, or ownership, will be studied more in detail.
31. Ownership
Strict and real right is also called ownership,14 which can be defined as the legal right to dispose of something as one’s own. It is legal because the disposition must comply with both natural and positive law. Ownership is different from the rights of administrators, who can dispose of things, but not as their own.
This discussion is limited to human ownership, as opposed to the absolute and universal dominion of God. Human ownership can be absolute or partial. Absolute ownership or dominion extends to the object and its fruits; partial ownership extends only to the object or its fruits.
Partial ownership can in turn be divided into three types. Direct, radical, or naked ownership enjoys the possession of the object, but cannot freely dispose of it or its fruits. Indirect or useful ownership does not possess the object, but enjoys its use and its fruits. The fruits may be disposed of (usufruct) or not (mere use). Indirect ownership stems from different types of contracts that will be studied later on.
The ownership that we have just described is called low or private ownership, as distinct from the higher right of the legitimate civil authority, which is called eminent domain. For serious reasons, the authorities can dispose of the properties of individuals for the benefit of the community. This is the case of compulsory expropriation for public works like highways and streets. For the expropriation to be morally licit, the common good must indeed require it, and society, which will benefit from it, must adequately compensate the owners.
31a) The Object of Ownership
Man has useful ownership—not absolute ownership—over what is intrinsic to him, that is, his soul and his body. Thus, he cannot take his own life (cf. Wis 16:13) or freely dispose of his body—mutilation, sterilization, debauchery, drug addiction, or unnecessarily risking serious sickness.
Man has strict but limited ownership of his reputation. It is limited because he needs a good reputation to act properly, and cannot destroy or risk it without serious cause (cf. Sir 41:14–18).
Man owns the fruits of his work and intelligence, such as publications, inventions, and artifacts, according to the dispositions of civil laws.
Man has a strict ownership of the external goods that he legally possesses.
No one can have absolute ownership of another person.
31b) The Subject of Ownership
Only rational creatures can own things, or be subject of the right to property. Only rational creatures can exercise that right, since it requires understanding and will. It is not that irrational creatures are denied that right, or that it is not convenient to grant it to them; it is simply that they cannot possibly exercise any right, because they lack the necessary faculties, that is, understanding and will.
Moral or juridical persons—constituted by the moral union of several physical persons, that is, human beings—also are subjects of ownership. Canon law establishes the conditions that are required for an ecclesiastical juridical person (diocese, parish, or confraternity) to enjoy ownership. Civil law does the same for civil juridical persons (corporations, sport clubs, or city councils).
On the other hand, the subjects of ownership can have their right limited by civil or ecclesiastical laws. These laws, if they are just, bind in conscience.
INJUSTICE
32. The Act of Injustice
Injustice is any action that is contrary to the cardinal virtue of justice. It is also called wrong or injury (from in-iuria, “violation of a right”).
Injustice is a mortal sin ex genere suo, that is, admitting slight matter (cf. 1 Cor 6:10). It is not easy to determine what constitutes a slight or a serious matter. As a general rule, there is serious matter when a considerable harm is done to another person or to the common good,15 or, in other words, when the victim or the rulers of the community strongly and reasonably oppose the injury.
Not all injustices belong to the same kind, although all violate the virtue of justice. Robbery and slander, for example, are different types of injustice.
One who inadvertently or unintentionally violates another’s rights commits only a material injustice, not a formal one. As we shall see later, he is not always bound to make restitution.
No one can suffer an injustice if he does not oppose it. If he knowingly, willingly, and lawfully suffers an injury, that action is no longer an injustice. Thus, no injustice is committed by taking away something with the knowledge and free consent of the owner.16
The two main categories of injustice are the unjust appropriation of another’s property and unjust damage. Both will be studied in depth, but we will advance something about the latter.
Unjust damage is an action by which harm is inflicted on another without taking away any property of his. The second clause distinguishes it from unjust appropriation.
The harm may refer to natural goods, either spiritual or corporal, or to supernatural goods. The latter is more vicious, and has already been studied as scandal.
Unjust damage is formal when deliberate and voluntary, which entails a formal sin against justice. It involves not only a juridical fault, but also “theological guilt.” If these two conditions are not met, the damage is involuntary and is called material damage.
Formal unjust damage is a mortal sin ex genere suo, that is, admitting slight matter. Material damage, by definition, is not a sin.
Footnotes:
1. Cf. ST, II-II, q. 58, a. 1; CCC, 1807.
2. Cf. CCC, 2236, 2411.
3. Cf. ST, II-II, q. 58, a. 7.
4. Cf. Ibid., II-II, q. 58, a. 5.
5. Cf. CCC, 2240.
6. Cf. ST, II-II, q. 62, a. 2 ad 4.
7. Cf. CCC, 2238–2243.
8. Ibid., 2242–2243.
9. Cf. ST, II-II, q. 61, a. 1.
10. Cf. Ibid., II-II, q. 61, a. 3.
11. Cf. CCC, 2236.
12. CCC, 2241.
13. Cf. GS, 26. Some of the most important human rights, universally recognized, are:
· the right to life, liberty and security of person,
· the right to food, clothing, and housing,
· the right to sufficient health care,
· the right to rest and leisure,
· the right to freedom of expression,
· the right to education and culture,
· the right to freedom of thought, conscience, and religion; and the right to manifest one’s religion either individually or in community, in public or in private,
· the right to choose a state in life, found a family, and enjoy all conditions that are necessary for family life,
· the right to property and work, adequate working conditions, and a just wage,
· the right of assembly and association,
· the right to freedom of movement, to internal and external migration,
· the right to nationality and residence,
· the right to political participation and the right to participate in the choice of the political system of the people to which one belongs. (Cf. John Paul II, Address to the UN General Assembly, 2 October 1979, 13, in John Paul II: The Pope’s Challenge [New York: Scepter, 1979], 32).
14. Cf. CCC, 2402–2406.
15. Cf. ST, II-II, q. 73, a. 3.
16. Cf. Ibid., II-II, q. 59, a. 3.
24. Definition of Justice
In Sacred Scripture, the term justice often means the whole array of virtues: full and complete moral goodness (cf. Mt 5:6, 20). In other passages, it means the state of sanctifying grace (cf. Rom 4:3). In other occasions, it also means the cardinal virtue of justice proper, which can be defined as the perpetual and constant will to render to each one his right.1
The three essential properties of justice directly follow from the definition:
i) Justice always refers to another person. Strictly speaking, there are no obligations of justice toward oneself.
ii) The object of justice is not a free gift, but something that is strictly due.
iii) Justice does not demand an approximate compensation, but only what is exactly due, neither more nor less.
The differences between fraternal charity and justice are worth noting. Justice is based on the distinction between persons, while charity is based on their union through love. Out of justice, we give our neighbor what is his; out of charity, we give what is ours. Charity is superior to justice, but the duties of justice are stricter than those of charity.
A peculiar trait of justice is that it does not only aim at the right mean dictated by reason, as the other virtues do, but that it also aims at the mean of what is due, or objective mean, which is often quantifiable.
SUBJECTIVE PARTS OF JUSTICE
25. Division of the Subjective Parts of Justice
Modern authors usually distinguish three kinds of justice: legal justice (duties of the individual toward the community), distributive justice (duties of the community toward the individual), and commutative justice (duties of an individual toward other individuals).2
This division, however, has not gone unchallenged, with objections arising as early as the sixteenth century. The proper way to classify virtues is according to their primary end, not according to the persons to whom they are directed. Therefore, the traditional division of Aristotle and St. Thomas3 seems to be more appropriate:
· Legal, general, or social justice is directly and primarily aimed at the common good. These terms are taken here as equivalent.
· Particular justice is directed to the private good. It can be further divided into:
o commutative justice,
o distributive justice.
26. General Justice
General justice is the stable determination to render to civil or ecclesiastical society what is its due.4
Man has a social nature. Since he needs the company (societas) of others, he has duties toward this society. The virtue that inclines the will to fulfill these social duties is called general justice, because it aims at the general, social, or common good, and also because it directs man’s actions to that good in a general way. This virtue moves citizens to pay their taxes and obey the law, civil servants to fulfill their duties, legislators to make just laws, judges to apply them properly, etc. It is also called legal justice because its main function is establishing and obeying laws.
General justice is especially necessary for the common good. When it is not practiced, peace is disturbed and citizens are sorely harmed, especially if the rulers are the ones breaking it by issuing unjust laws.
26a) Taxes
Citizens violate general justice by breaking civil laws and, specifically, by not paying their taxes.
From the moral point of view, just taxes must be paid, since they are indispensable for society (cf. Mt 17:26–27; 22:21).5 This is a serious obligation of conscience (cf. Rom 13:5–7). Restitution must be made for tax evasion. It is not only violations of commutative justice that require restitution. In some occasions, legal and distributive justice also impose an obligation to make restitution, because they are required by justice as well. In this case, the recipient of the restitution can be society itself or the persons whom society should help—the poor. But the amount to be returned is often difficult to assess.6
Like all laws, tax laws should, in principle, be held as just, unless there is evidence to the contrary. Tax laws, however, should be carried out with some lenience, since at times, because of widespread tax evasion, tax rates are higher than it would otherwise be necessary. In these cases, strict observance would penalize honest taxpayers. The extent of that tolerance, though, is difficult to determine; it depends on the time and place, and sometimes, there should be none.
In theory, if there is evidence that public funds are used for illicit purposes—for example, financing pornographic movies, sterilization programs, or abortion—one may deduct a proportional amount from one’s taxes. Nobody is obliged to pay unjust taxes, but the evidence must be solid. An upright conscience is thus needed, and all possible scandal must be avoided.
There is no objection, of course, to using every available legal means to reduce one’s taxes. This is not a breach of the law, but rather a strict fulfillment of all its terms and provisions.
26b) Cooperation in Public Affairs
Citizens must feel concern for the affairs of their community.7 Everyone must cooperate in his own position so that society at large, and all the natural or voluntary associations within it, may enjoy harmony, peace, justice, and efficiency.
The primary cooperation consists in fulfilling one’s patent duties: respecting natural morals in dealing with other citizens, obeying just laws, paying taxes.
They should also be willing to vote in elections for public office and for other associations to which they may belong (unions, professional associations, committees, cultural or leisure associations). In casting their vote, citizens must consider in conscience the governmental programs (morality, effectiveness, convenience, and feasibility) and the candidates (rectitude, competence). After careful consideration, the voters should elect the most trustworthy candidate—or, if worse comes to worst, the one they mistrust less. Neglecting this duty without just cause may easily be an objectively serious transgression.
Aside from this, their sense of solidarity must move citizens to actively participate in the smooth running of these societies. They should be willing to devote time and effort to tasks that will benefit the community, each according to his position and abilities. Some could take care of organizing the town festival, while others could enter politics in a professional way. In any case, they should be moved by a desire to serve all the members of their respective communities. Thus, in a most natural and spontaneous way, citizens directly contribute to the common good through their goodwill, honesty, experience, and dedication.
The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel. Refusing obedience to civil authorities, when their demands are contrary to those of an upright conscience, finds its justification in the distinction between serving God and serving the political community.…
Armed resistance to oppression by political authority is not legitimate, unless all the following conditions are met: 1) there is certain, grave, and prolonged violation of fundamental rights; 2) all other means of redress have been exhausted; 3) such resistance will not provoke worse disorders; 4) there is well-founded hope of success; and 5) it is impossible reasonably to foresee any better solution.8
27. Particular Justice
Particular justice is the stable determination to give to each physical or juridical person what is his due. Its two main species are commutative justice and distributive justice.9
27a) Commutative Justice
Commutative justice is a private person’s stable determination to give another private person what is strictly his due. There must be an absolute equality between what is given and what is received.
The term commutative refers to the commutations or exchanges that it primarily covers, like buying and selling. It also applies to other subjects, like the matter of the last six commandments of the Decalogue.10
Commutative justice is not stricter than legal justice or distributive justice. Just like these, it requires restitution when transgressed. Here, however, the object or amount of the restitution is much easier to determine, and thus the obligation is more pressing.
27b) Distributive Justice
Distributive justice is the stable determination that inclines the ruler of a community to equitably distribute burdens and honors among its members according to their capacities and merits. Unlike commutative justice, it does not require absolute equality, but rather proportional equality.11
The more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin.12
27c) Vindictive Justice
We can still distinguish a third kind of particular justice, vindictive justice, which inclines the ruler of a community to punish crime with the right penalties. It can be considered as part of distributive justice if we focus on the determination of the appropriate penalty. It will also be a part of legal justice if we consider its impact on the common good; or of commutative justice, since the judge is obliged to punish crime, and would not fulfill the duties of his office if he fails to do so.
POTENTIAL PARTS OF JUSTICE
28. Division of the Potential Parts of Justice
The potential parts of justice are virtues with the same general object as justice, but lacking the perfection of justice in some aspect.
· Virtues that lack the perfect equality of justice:
o Religion is the virtue that inclines man to give to God his due. But we will never be able to give God what he deserves, or even something equivalent to what we have received from him.
o Piety inclines man to give to his parents what is their due. Again, children cannot give to their parents something that is equivalent to what they have received from them—life.
o Reverence inclines one to give due honor to persons of great virtue and dignity. But virtue can never be properly rewarded in this life.
· Virtues that lack the strict obligation of justice—what is received is not strictly due:
o Sincerity inclines one to say the truth and always avoid lies.
o Gratitude inclines one to reward in some way the benefits that have been received.
o Vindication moves one to seek restitution for the sins of others. It should not be confused with revenge, which is a sin.
o Generosity inclines one to moderate love for earthly goods and use them properly for one’s own and others’ benefit, and for honoring God.
o Politeness inclines one to be pleasant in dealing with others.
o Equity or epikeia inclines one to ignore the letter of the law when there is a just cause, in order to better follow the presumed intention of the legislator.
RIGHTS OF THE PERSON
29. Rights of the Person
We have defined justice as the permanent determination to give each one what is strictly his due. We will examine now what is due to a person, that is, the rights of the person or subjective rights.
Right of the person, or subjective right, is the capacity to do, own, demand, or omit something. We further distinguish the active right (that is, the capacity or moral faculty that we have just defined) from the passive right (which is the object or action that one is entitled to do, own, demand, or omit. Here, the term subjective literally means “of the subject,” bearing no relation at all to the subjective appreciation of the right.
We should also clarify that it is a moral faculty, not a physical capacity. This faculty must be respected by others, creating a corresponding obligation of not infringing on it. Thus, every subjective right corresponds to a duty for others.
30. Kinds of Rights of the Person
Subjective rights can be classified according to their origin and according to their strictness. If we look at their origin, subjective rights stem from objective laws. We have already seen that objective laws include eternal law, natural law, divine positive law, and human laws. Accordingly, subjective rights can be divided as follows:
· Natural rights are subjective rights belonging to man by virtue of the very principles of human nature. These are, for example, the rights to self-defense and private property.
o The more common expression human rights usually refers to natural rights and their necessary protection by positive law.13 However, their connection with eternal law is often neglected, thus depriving them of their deepest foundation.
o Rights that are possessed by the very fact of being born or, rather, of coming into existence, are called innate rights. Examples of innate rights include the right to life and to being nourished by one’s parents. Acquired rights are those that are possessed because of a contingent act, such as ownership of something that one has bought.
o Jus gentium (“law of peoples”) is a series of natural rights that are not immediately known, but are necessarily deduced from natural rights. For this reason, they are common to different peoples or nations. It is somehow in between natural law proper and civil law. Not all authors agree on this, however, and it is often understood in a different but related sense—that of international law, whether written or not.
· Divine positive rights are those rights that are conferred upon man by a special divine decision, such as the right to receive the sacraments or to hear the preaching of the Gospel.
· Civil or ecclesiastical rights are those that stem from civil or ecclesiastical law. Thus, the faithful have the right to receive the sacraments from their parish priest, and the citizens are entitled to have their life and property protected by the civil authorities.
On the other hand, rights can be strict or non-strict. Non-strict rights, or rights in the broader sense, are those whose violation is not an injustice, but simply a lack of equity. For example, a person who has rendered valuable services has the “right” to be commended. Strict rights, however, are so closely united to the person that they cannot be taken away without injuring the person.
Strict rights can be further divided into real rights (ius in re) and personal rights (ius ad rem). The former refers to what is actually possessed; the latter refers to what is not yet in one’s possession. Thus, we have a real right to the money that we have, and a personal right to the money that is owed us. In principle, the latter does not entitle to take the money at will, but only to demand its repayment. Thus, personal right is said to lead to real right. Strict real right, or ownership, will be studied more in detail.
31. Ownership
Strict and real right is also called ownership,14 which can be defined as the legal right to dispose of something as one’s own. It is legal because the disposition must comply with both natural and positive law. Ownership is different from the rights of administrators, who can dispose of things, but not as their own.
This discussion is limited to human ownership, as opposed to the absolute and universal dominion of God. Human ownership can be absolute or partial. Absolute ownership or dominion extends to the object and its fruits; partial ownership extends only to the object or its fruits.
Partial ownership can in turn be divided into three types. Direct, radical, or naked ownership enjoys the possession of the object, but cannot freely dispose of it or its fruits. Indirect or useful ownership does not possess the object, but enjoys its use and its fruits. The fruits may be disposed of (usufruct) or not (mere use). Indirect ownership stems from different types of contracts that will be studied later on.
The ownership that we have just described is called low or private ownership, as distinct from the higher right of the legitimate civil authority, which is called eminent domain. For serious reasons, the authorities can dispose of the properties of individuals for the benefit of the community. This is the case of compulsory expropriation for public works like highways and streets. For the expropriation to be morally licit, the common good must indeed require it, and society, which will benefit from it, must adequately compensate the owners.
31a) The Object of Ownership
Man has useful ownership—not absolute ownership—over what is intrinsic to him, that is, his soul and his body. Thus, he cannot take his own life (cf. Wis 16:13) or freely dispose of his body—mutilation, sterilization, debauchery, drug addiction, or unnecessarily risking serious sickness.
Man has strict but limited ownership of his reputation. It is limited because he needs a good reputation to act properly, and cannot destroy or risk it without serious cause (cf. Sir 41:14–18).
Man owns the fruits of his work and intelligence, such as publications, inventions, and artifacts, according to the dispositions of civil laws.
Man has a strict ownership of the external goods that he legally possesses.
No one can have absolute ownership of another person.
31b) The Subject of Ownership
Only rational creatures can own things, or be subject of the right to property. Only rational creatures can exercise that right, since it requires understanding and will. It is not that irrational creatures are denied that right, or that it is not convenient to grant it to them; it is simply that they cannot possibly exercise any right, because they lack the necessary faculties, that is, understanding and will.
Moral or juridical persons—constituted by the moral union of several physical persons, that is, human beings—also are subjects of ownership. Canon law establishes the conditions that are required for an ecclesiastical juridical person (diocese, parish, or confraternity) to enjoy ownership. Civil law does the same for civil juridical persons (corporations, sport clubs, or city councils).
On the other hand, the subjects of ownership can have their right limited by civil or ecclesiastical laws. These laws, if they are just, bind in conscience.
INJUSTICE
32. The Act of Injustice
Injustice is any action that is contrary to the cardinal virtue of justice. It is also called wrong or injury (from in-iuria, “violation of a right”).
Injustice is a mortal sin ex genere suo, that is, admitting slight matter (cf. 1 Cor 6:10). It is not easy to determine what constitutes a slight or a serious matter. As a general rule, there is serious matter when a considerable harm is done to another person or to the common good,15 or, in other words, when the victim or the rulers of the community strongly and reasonably oppose the injury.
Not all injustices belong to the same kind, although all violate the virtue of justice. Robbery and slander, for example, are different types of injustice.
One who inadvertently or unintentionally violates another’s rights commits only a material injustice, not a formal one. As we shall see later, he is not always bound to make restitution.
No one can suffer an injustice if he does not oppose it. If he knowingly, willingly, and lawfully suffers an injury, that action is no longer an injustice. Thus, no injustice is committed by taking away something with the knowledge and free consent of the owner.16
The two main categories of injustice are the unjust appropriation of another’s property and unjust damage. Both will be studied in depth, but we will advance something about the latter.
Unjust damage is an action by which harm is inflicted on another without taking away any property of his. The second clause distinguishes it from unjust appropriation.
The harm may refer to natural goods, either spiritual or corporal, or to supernatural goods. The latter is more vicious, and has already been studied as scandal.
Unjust damage is formal when deliberate and voluntary, which entails a formal sin against justice. It involves not only a juridical fault, but also “theological guilt.” If these two conditions are not met, the damage is involuntary and is called material damage.
Formal unjust damage is a mortal sin ex genere suo, that is, admitting slight matter. Material damage, by definition, is not a sin.
Footnotes:
1. Cf. ST, II-II, q. 58, a. 1; CCC, 1807.
2. Cf. CCC, 2236, 2411.
3. Cf. ST, II-II, q. 58, a. 7.
4. Cf. Ibid., II-II, q. 58, a. 5.
5. Cf. CCC, 2240.
6. Cf. ST, II-II, q. 62, a. 2 ad 4.
7. Cf. CCC, 2238–2243.
8. Ibid., 2242–2243.
9. Cf. ST, II-II, q. 61, a. 1.
10. Cf. Ibid., II-II, q. 61, a. 3.
11. Cf. CCC, 2236.
12. CCC, 2241.
13. Cf. GS, 26. Some of the most important human rights, universally recognized, are:
· the right to life, liberty and security of person,
· the right to food, clothing, and housing,
· the right to sufficient health care,
· the right to rest and leisure,
· the right to freedom of expression,
· the right to education and culture,
· the right to freedom of thought, conscience, and religion; and the right to manifest one’s religion either individually or in community, in public or in private,
· the right to choose a state in life, found a family, and enjoy all conditions that are necessary for family life,
· the right to property and work, adequate working conditions, and a just wage,
· the right of assembly and association,
· the right to freedom of movement, to internal and external migration,
· the right to nationality and residence,
· the right to political participation and the right to participate in the choice of the political system of the people to which one belongs. (Cf. John Paul II, Address to the UN General Assembly, 2 October 1979, 13, in John Paul II: The Pope’s Challenge [New York: Scepter, 1979], 32).
14. Cf. CCC, 2402–2406.
15. Cf. ST, II-II, q. 73, a. 3.
16. Cf. Ibid., II-II, q. 59, a. 3.