Summa Theologica Part III (Secunda Secundae) Part 92

Obj. 2: Further, there is room for fraud in other things than in buying and selling. Therefore the Law unfittingly forbade fraud solely in buying and selling.

Obj. 3: Further, there is the same reason for prescribing an act of virtue as for prohibiting the act of a contrary vice. But acts of prudence are not prescribed in the Law. Therefore neither should any contrary vices have been forbidden in the Law.

The contrary, however, appears from the precepts of the Law which are quoted in the first objection.

_I answer that,_ As stated above (A. 1), justice, above all, regards the aspect of something due, which is a necessary condition for a precept, because justice tends to render that which is due to another, as we shall state further on (Q. 58, A. 2). Now craftiness, as to its execution, is committed chiefly in matters of justice, as stated above (Q. 55, A. 8): and so it was fitting that the Law should contain precepts forbidding the execution of craftiness, in so far as this pertains to injustice, as when a man uses guile and fraud in calumniating another or in stealing his goods.

Reply Obj. 1: Those vices that are manifestly opposed to prudence, do not pertain to injustice in the same way as the execution of craftiness, and so they are not forbidden in the Law, as fraud and guile are, which latter pertain to injustice.

Reply Obj. 2: All guile and fraud committed in matters of injustice, can be understood to be forbidden in the prohibition of calumny (Lev.

19:13). Yet fraud and guile are wont to be practiced chiefly in buying and selling, according to Ecclus. 26:28, "A huckster shall not be justified from the sins of the lips": and it is for this reason that the Law contained a special precept forbidding fraudulent buying and selling.

Reply Obj. 3: All the precepts of the Law that relate to acts of justice pertain to the execution of prudence, even as the precepts prohibitive of stealing, calumny and fraudulent selling pertain to the execution of craftiness.

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QUESTION 57

OF RIGHT (In 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.

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

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?

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FIRST ARTICLE [II-II, Q. 57, Art. 1]

Whether Right Is the Object of Justice?

Objection 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.

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.

Obj. 3: Further, justice, before all, subjects man to G.o.d: for Augustine says (De Moribus Eccl. xv) that "justice is love serving G.o.d 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.

_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."

_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 rect.i.tude 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.

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.

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.

Reply Obj. 3: Since justice implies equality, and since we cannot offer G.o.d 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, G.o.d is satisfied if we accomplish what we can. Nevertheless justice tends to make man repay G.o.d as much as he can, by subjecting his mind to Him entirely.

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SECOND ARTICLE [II-II, Q. 57, Art. 2]

Whether Right Is Fittingly Divided into Natural Right and Positive Right?

Objection 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.

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.

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.

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

_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."

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 rest.i.tution 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.

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 (Isa. 10:1): "Woe to them that make wicked laws."

Reply Obj. 3: The Divine right is that which is promulgated by G.o.d.

Such things are partly those that are naturally just, yet their justice is hidden to man, and partly are made just by G.o.d'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.

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THIRD ARTICLE [II-II, Q. 57, Art. 3]

Whether the Right of Nations Is the Same As the Natural Right?

Objection 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.

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.