Treatise on Justice

Question 57: Right (ius)

Question 58: Justice (iustitia)

Question 59: Injustice (iniustitia)

Question 60: Judgment (iudicium)

Question 61: The subjective parts of justice: commutative justice and distributive justice

Question 62: The act of commutative justice: restitution (restitutio)

Question 63: The vice opposed to distributive justice: favoritism (acceptio personarum)

Question 57: Right (ius)

  • 57,1: Justice, properly speaking, directs human beings in their relations with one another and, most properly, their relations with one another as fellow citizens of the civitas.  Right or 'the just' is the proper object of the virtue of justice, that which is intended in just actions--and this independently of the manner (e.g., willingly or reluctantly, courageously or not, temperately or not) in which the just action is done. The latter is the domain of prudence, fortitude, and temperance as well as of justice.  So, in general, I do "the just" when I render to others what is their right or due, i.e., what is "commensurate with" them in their dealings with or relationship to me.  For instance, it is just that in an exchange I render to the other something of equal (or mutually agreed upon) value in exchange for what the other has given to me.

    In the reply to obj. 2 St. Thomas notes that law, which is a rule of prudence, is not identical with right, but is rather an expression of right and guides the cognitive aspect of just action.

  • 57,2: The distinction of natural right from positive right is a distinction between (i) what is right or just by its very nature and (ii) what is right or just according to either private or public agreement, so long as that agreement is consonant with natural right and natural law. So, for instance, when a monetary system is instituted, there is a public agreement assigning a certain value to a unit of currency and so, even though the currency is not by nature as valuable as a given item obtained in an exchange (after all, it's just a piece of paper), it is accepted as commensurate with the value of the item. The italicized qualification is necessary, as St. Thomas makes clear in the reply to obj. 2, where he says that no human agreement could make it just to steal or commit adultery.  So the doctrine of right is directly incompatible with the idea that all moral law is conventional.

  • 57,3: The distinction between natural right and the right of nations is the distinction between (i) what is commensurate or just by its very nature (e.g., the preservation of the lives of individuals, the relation between a man and a woman with respect to begetting an offspring, the relation between parents and their children with respect to the nourishment of the children)--this is common to us and other animals--and (ii) what is just or commensurate with respect to what naturally follows from natural right, e.g., the possession of property as an aid to surviving as an individual or as an aid to providing for one's family, etc. The right of nations does not require special institution, because it is prior to the various agreements or conventions by which, say, the right to property is regulated.

  • 57,4: What has been said above governs relations between strict equals who are not in any way subject to one another. But there are many social relations that involve an asymmetry of some sort or other, e.g., father/child, master/servant, teacher/student, employer/employee, commander/soldier, etc. The just is sensitive to such special relations; some are relations between equals strictly speaking and some are not. (Relations that are not strictly between equals to that extent fall short of justice in its most proper acceptation, though they are still potential parts of justice.) St. Thomas distinguishes among the various relationships. Some such relationships involve, according to St. Thomas, asymmetric relations in which one person is, as it were, a part that belongs to the other, e.g. child/parent and servant/master. Others involve asymmetries which hold only as long as and insofar as one of the persons is actually exercising a special office or role (e.g., spouses, priestly ministry, teacher, employer, etc.). Since such asymmetries are built into the very notion of a political community, they fall under justice properly and absolutely speaking and not in just the relative way that, say, the father/child relation does. The difference seems to be that all parties play their roles insofar as they belong immediately as equals to the relevant community (family, church, state), whereas children (servants) do not have such equality vis-a-vis the community with their parents (masters). It is as if their membership in the relevant communities is mediated by their status as children and servants. (It would be worth trying to research St. Thomas's exact understanding of the master/servant relation and what is involved in it.)

Question 58: Justice (iustitia)

  • 58,1-2: Justice can be defined as the habit by which one renders to each his right or due with a constant and perpetual will.  Note in art. 2 that Plato's definition of justice (diakosune) in the Republic is called metaphorical justice, but not proper justice, because proper justice is always direct toward another rather than toward oneself.  However, it is also true that one who is just in Plato's sense will have that virtue of the will which is general or legal justice--or so, at least, it seems, because a general devotion to the common good or law-abidingness is on Plato's view a defining characteristic of the just or morally upright person.

  • 58,3: St. Thomas here explains that justice is a virtue even though just acts are the fulfillment of commands and hence of obligations. Note how in ad 2 St. Thomas deals with supererogation. It does seem that we can have supererogation, relatively speaking, in that we might sometimes go beyond the strict demands of justice in our dealings with one another. But one might also claim that there can be no true supererogation, absolutely speaking, in a moral theory according to which we are ultimately commanded to love one another as Christ has loved us. Perhaps we can discuss this. In any case, St. Thomas later notes in art. 11 that (natural) mercy and liberality are traced back to justice as potential parts and in that sense fall under justice.

  • 58,4: Justice is ordered toward doing something aright and not toward knowing something aright, and so justice must have an appetitive power as its subject. Further, since it is rational rather than sentient apprehension which has our dealings with others and our rendering them their due as its proper object, it follows that justice must reside in the rational appetitive power, viz., the will.

  • 58,5-6: In these two articles St. Thomas deals with justice insofar as it is a general virtue, i.e., insofar as it is a virtue which underlies any good action that affects our relations with others. When one puts it this broadly, it is evident that general justice provides an end, the common good, that can motivate even acts of temperance and fortitude.  That is, when acts of temperance and fortitude are directed to the common good, they become, as it were, acts of (general) justice as well, much as such acts can be turned into acts of charity if they are motivated by the (general) virtue of charity.  For all such actions can at least make one a more fit member of the community and so, if this motive is at least in the background, then all such actions can be thought of as being just and, indeed, as acts of justice, even though , strictly speaking, general justice is best thought of, like charity, as causing or motivating such actions.. St. Thomas calls general justice 'legal justice' (iustitia legalis), the virtue of a good citizen or of a good member of a community.

    In art. 6 St. Thomas clarifies the nature of this legal justice, claiming that it is general insofar as it is a cause of all the acts of the other virtues (prudence, temperance, fortitude, and particular justice) insofar as it orders them toward the common good. He uses an analogy: "Just as charity can be called a general virtue to the extent that it orders the acts of all the virtues to the divine good, so, too, legal justice can be called a general virtue to the extent that it orders the acts of all the virtues to [its own end,] the common good." It is principally in the sovereign and secondarily in the subjects of the sovereign.

  • 58,7-11: In these five articles St. Thomas deals with justice insofar as it is a particular virtue, i.e., insofar as it specifies general justice with respect to our particular relations with particular individuals as parts of a political community and with respect to particular goods.

    Arts. 7 and 8 clarify the nature and object of particular justice. As a particular virtue justice has a special subject matter, viz., our relations to others, and its own object, the just; and in this way, like temperance and fortitude in their own way, particular justice is directed by general justice toward the common good with respect to the specific subject matter of particular justice--just as, in the case of infused justice, particular justice is directed by charity toward love of God and neighbor with respect to the specific subject matter of particular justice.

    Art. 9 clarifies the subject of particular justice. This subject is the will, rather than the passions. And so justice does not have to do directly with the passions, though it is painfully obvious that the roots of injustice often (though not always) lie in passions that are not subject to reason. See ad 2 and ad 3 for some interesting reflections on the relation of justice to temperance and fortitude and general justice.

    Art. 10 makes clear that justice has a real mean rather than, as with fortitude and temperance, a mean that is adjusted to particular temperaments. Justice, by contrast, is such that its demands are satisfied by the rendering of whatever is due in a given situation, by no more and no less.

    Art. 11 specifies the proper act of justice, which is to render each his due. Of course, there will be other related virtues having to do with our relations to others which take us beyond the demands of justice; and these will be potential parts of it.

  • 58,12: Justice is foremost among the moral virtues, regardless of whether it is taken as a general virtue that orients us toward the common good or as a particular virtue that is ordered toward the particular good of other individuals. It is by justice (and charity) that we overcome our inborn postlapsarian tendency to center our lives on ourselves.

Question 59: Injustice (iniustitia)

  • 59,1: The vice directly opposed to general or legal justice is itself a particular vice, viz., contempt for the common good, which may obviously lead to all sorts of sins. On the other hand, though the vices directly opposed to particular justice are varied, we can nonetheless think of injustice as a disposition for violating the demands of justice whenever this becomes necessary for personal gain, etc.  So in this sense it is like a general vice.

  • 59,2: One becomes unjust by (i) choosing to do what is unjust (ii) with the intention of doing this thing which both (a) is unjust and (b) one knows or should know to be unjust. But one may do what is unjust without having the habit of injustice, as when one acts unjustly out of passion or ignorance. Of course, such actions could nonetheless lead in the end to one's having the fixed habit of will which is ordered toward unjust acts.

  • 59,3: Properly speaking, to be unjust an act must be done willingly, and the injustice done must be suffered unwillingly insofar as the sufferer is passive. However, one can suffer injustice willingly per accidens, viz., by actively accepting the injustice done to one, as with Christ and the martyrs.

  • 59,4: St. Thomas soberly declares here that injustice, taken as a harm or injury intentionally inflicted on another, is the stuff of mortal sins, though in ad 2 he clarifies this by saying that injustices in small matters are not counted as utterly opposed to the will of the one who suffers from them.

Question 60: Judgment (iudicium)

  • 60,1-2: Judgment is an act of justice insofar as justice inclines the will to judge aright (via prudence) in matters pertaining to our relations with others. The notion of justice has a special tie to judgment, as is clear from the Law, in which one who is given authority to determine what is right and just is called a 'judge' or even 'justice'. In the articles that follow we are taking the juridical proceedings of a courtroom as the paradigm or primary context for judgment and "private" judgment as a secondary area for concern.

    Note 2:  "A spiritual man has from the habit of charity an inclination to judge rightly in all matters according to divine rules, on the basis of which he pronounces judgment through the gift of wisdom--just as a just man pronounces judgment on the basis of the rules concerning right through the vritue of prudence."  Notice the parallel:  the gift of wisdom is to charity as prudence is to justice.

    St. Thomas comments in art. 2 that judgment is lawful insofar as it is an act of justice, i.e., insofar as (i) it proceeds from an inclination of justice in the will, (ii) it comes from one who has the relevant authority, and (iii) it reflects the right ruling of prudence. So there are three ways in which a judgment can be unlawful: (i) by being contrary to the rectitude of justice (perverted judgment); (ii) by coming from one who does not have the right sort of authority in the case at hand (judgment by usurpation); and (iii) by proceeding, without sufficient motive, as if some doubtful matter were clear (suspicion or rash judgment). In the oft-cited Gospel passage our Lord forbids rash judgment about other peoples' intentions, "Judge not, lest you be judged."

  • 60,3: Suspicion (suspicio) (perhaps 'prejudice' is better here) connotes an opinion regarding evil, where the opinion arises from insufficient evidence. There are three ways in which one can have a suspicion so defined. First, because one is himself evil and so is prone in general to think evil of others; second, because one is ill-disposed toward a given person and hence is prone to have suspicions about that particular person; third, one has lots of negative experience in general, and so is prone to be suspicious in this particular case, even though one is neither evil nor particularly ill-disposed toward this particular person. The first two causes indicate a lack of rectitude in the affections, whereas the third diminishes the guilt involved in suspicion. The relevant sins are, in increasing order of seriousness: (i) beginning to have doubts about another's goodness; (ii) thinking it certain, on slight evidence, that another is wicked (this is grave matter); (iii) condemning someone as a judge on slight evidence. (Note that the thoughts themselves are sins against justice in the way that lustful desires are sins against temperance.)

  • 60,4: Here St. Thomas makes clear others are always to be given the benefit of the doubt, so that we ought never "to despise or in any injure another without urgent cause." Also, it is worse to have a bad opinion of a good man than to have a good opinion of a bad man. Read the replies to obj. 2 and 3 if there's time.

  • 60,5-6: Judgment in the sense relevant here must be according to written law, which is made by a public authority, and hence judgment cannot be pronounced except by a public authority. The replies to the objections are interesting in art. 6, because they deal with the relation between divine and human authority.

Question 61: The subjective parts of justice: commutative justice and distributive justice

  • 61,1: St. Thomas divides justice into commutative justice, which deals with the relations between individuals within a given community, and distributive justice, which deals with the relation of the community as a whole to individuals. (We have already dealt with general justice, which deals with the individual's relation to the common good, i.e., to the whole community.) St. Thomas's conception of the individual and the community self-consciously steers between individualism, which recognizes only commutative justice and thinks of the common good as a mere compilation of private goods and the role of the sovereign as simply to prevent private individuals from harming one another in pursuit of their independently conceived private goods, and collectivism , which recognizes only distributive justice and thinks of the individual's private good as wholly exhausted by the public common good insofar as this public good is determined by those in authority.

  • 61,2: Commutative and distributive justice observe different means. In distributive justice, where goods that are common to everyone are distributed by the ruler according to different standards (virtue, wealth, power, expertise, need, etc.), the mean is equality of 'geometrical' proportion, which involves a certain proportionality, rather than equality, between the common goods to be distributed and the various individuals. So individuals need not be treated in exactly the same way, and those with greater virtue, expertise, need, etc., might receive unique privileges that ultimately contribute to the well-being of the whole.

    Commutative justice, on the other hand, has an arithmetic mean. That is, one receives something of equal value to what one gives or has taken from one.

  • 61,3-4: The matter of justice involves: (a) things and their disposition, (b) persons and their dignity, and (c) works. The two forms of justice have two different operations (distributing and commuting) with respect to this matter. A second way to think of this is to take the principal actions of the two types of justice as themselves the matter of justice. Then we can distinguish various matters relevant to commutative justice. These include the matter of the various vices opposed to commutative justice which will be taken up in questions 64-78.

    In art. 4, St. Thomas asks whether the just is counter-suffering ('retaliation': contrapassum--balancing the suffering against the action by which the injury is inflicted). St. Thomas answers that retribution or restitution is the object of commutative justice, since commutative justice seeks to keep or restore a balance between individuals.

Question 62: The act of commutative justice: restitution (restitutio)

  • 62,1-2: The main act of commutative justice is restitution or compensation. Restitution is the restoration of a kind of equity. I restore to you what I have received (or taken) from you--or at least something of equal value--or at least something that can be thought of as equal or, better, proportionate in value. The fundamental idea is that in our relations with other individuals a certain order or balance or equity must be preserved if those relations are to reflect or exemplify what is right or just by nature--that is, if they are to reflect a system of exchanges in which all have or receive what is due to them. Look at the replies to objs. 2 and 4 to get clearer on this.

  • 62,3-8: In the space of the next six articles St. Thomas defines the nature of restitution and asks various interesting questions about it. I won't go over all of this but just give some of the highlights to fill in a few details. In art. 3 we learn that the type of required restitution is a function not only of (i) the object that is received or taken from the other but also of (ii) the agent's having unjustly intended or unjustly executed the intention to receive or take something from another. As for this unjust taking or intention to take, it is rectified through punishment which, when added to the restoration of something equal in value, takes us beyond strict equality (a demand that applies to the object taken), so that one is bound in this sense to restore more than was taken. That is, the restitution has both an object-centered aspect and an agent-centered aspect.

  • 62,4: There are some cases in which taking or receiving a given object keeps its possessor from having or gaining a second object such that having the first object is to be on the way to having this second object. So, for instance, if I dig up the farmer's seeds right after they have been planted, I must not only restore something of equal value to the seeds but also something approaching the value of the harvest (to be determined exactly by a judge).

  • 62,5: Another interesting question is whether restitution must always be to the person from whom one has received or taken the relevant object. St. Thomas says yes, even though there are qualifications that apply to particular circumstances, e.g., extreme need on the part of those whom he is bound to aid out of filial piety; death; the probability that making restitution here and now will harm the person to whom restitution is being made, etc. It is interesting to see the subtlety with which St. Thomas deals with such cases in the replies to the objections.

  • 62,6: One who takes something unjustly is always bound to make restitution, at least through accepting punishment for the unjust taking or for the intention to take something unjustly. On the other hand, one who takes something justly with no profit to himself and then loses it is not bound to make restitution unless he has lost it through his own fault. (See above.) Still, if he takes something justly for profit to himself, then he must make restitution even if he loses it through no particular fault of his own. In general, the "chief end of restitution is that one who has less than his due must be compensated."

  • 62,7: Anyone who cooperates, directly or by omission, in an unjust taking in such a way that his contribution to the unjust taking is clearly efficacious must make restitution.

  • 62,8: Again, restitution should normally be immediate, unless the circumstances are such that immediate restitution is either impossible or detrimental to the one to whom restitution is being made or such that one has the latter's permission not to make immediate restitution.

Question 63: The vice opposed to distributive justice: favoritism and prejudice (acceptio personarum)

  • 63,1: Distributive justice recognizes various difference of roles, conditions, etc., which justifiably affect the distribution of goods and the treatment of individuals by those who have responsibility for promoting the common good. However, when one goes beyond these justifiable causes and gives more or less than what is due to someone for personal reasons or reasons that are not justifiable, then this is a sin against distributive justice. St. Thomas's example of the awarding of a professorship is interesting here. Affirmative action programs also come up for discussion here. Oftentimes disagreements arise over what are and are not justifiable reasons for the public distribution of various goods.

  • 63,2-3: St. Thomas applies this discussion to spiritual and ecclesial goods (note obj. 3 and ad 3), to the honoring of those who are wealthy or occupy positions of importance in the church and state, one's parents, the elderly, etc.

    63,4: Favoritism, as is obvious, can also infect judicial decrees and decisions. Note ad 1. Such decrees pertain to distributive justice even when they adjudicate matters of commutative justice between individuals.