Jacques Maritain Center :
Elements of Moral Theology(See Supplement, Chapters IV. and V.)
Right (jus) is the object of justice, for it is what is just.
Now it is peculiar to justice among the virtues that it ordains man in those things wherein he is related to another man, Other virtues perfect him in what belongs to himself; but in just action, the right considers not only the agent, but also another person. For that is called just action in which there is a certain relative equality, as when work is paid for with its due wages. The just action does not necessarily regard the manner in which the thing is done (e.g., whether freely or not). And thus justice is distinguishable from other virtues.
Because justice implies a certain equality, and we can recompense God by no equivalent for His bounty, properly speaking, justice is between man and man; yet justice tends to this, that man requite His Heavenly Father as much as he is able, by entire subjection of his soul to God.
Right is either natural or positive right.
One thing may be adequate to another, (1) according to its very nature, as when any one gives as much as he has received. This is natural right. (2) It may be adequate or commensurate according to some compact or common agreement, when one deems himself compensated if he receive so much. This may be either a private agreement between two individuals, or it may he by public consent, the whole people, with or without legal ordinance, agreeing that some one thing is adequate and commensurate to another.
(1) But it might be objected that what is natural is immutable, and is the same among all men; but no such thing is found in human affairs, because all the regulations of human right are defective in some cases and do not prevail everywhere. And this is true of what has an immutable nature; it must be always and everywhere the same. But man's nature is mutable, and so what is natural to man can sometimes be deficient. Thus it is naturally just and equal that what has been left in our charge be returned to its owner; and if human nature were always what it should be, this law would be immutable. But because it sometimes happens that the will of man is depraved, a case may occur in which such deposit is not to be returned; say, if a madman or an enemy of the republic demand the arms which he has left with us.
(2) Another objection, whose solution will help in clearing up the matter. Positive right proceeds from human will; but such a thing is not necessarily just; otherwise the will of man could never be unjust. I reply that the will of man, by the common consent of the people, can make something to be just where there is no natural repugnance to natural justice. Positive right is concerned with such things. "The legally just is that which in the beginning might have been thus or thus, and it mattered not which. But when it is decreed, then it does matter" (Nic. Eth. v. 7). But if anything has in itself repugnance to natural right, it cannot be made just by human will; say, if it be decreed lawful to steal or to commit adultery. "Woe unto them that decree unrighteous decrees" (Isa. x. 1).
(3) Divine right (jus divinum) is divisible in the same way. It is what is promulgated by God. But that is partly what is naturally just, though its justice may not be seen is by all men; partly what is made just by Divine institution.
In Divine law, accordingly, some things are commanded because they are good, and others prohibited because they are bad; but some things also are good because they are commanded, and others bad because they are prohibited (a very noteworthy distinction).
What is jus gentium?
The law of nature (jus naturale) is what nature teaches all animals, as the union of male and female, and the bringing up of children (Instit. i., tit. ii.), but the jus gentium is what natural reason has established among all men, which needs no special institution, and is found among all nations.
The rights of a father in respect to his children, and of a master over his servants, are to be distinguished from simple right. Servants and children are, as it were, a part of father and master (i.e., their time, work, etc., are not absolutely their own). As human beings, they have their individual rights; but as under another, justice, taken simply, does not express what is their due, but an imperfect justice based on their peculiar relations to father or master. For the relation is not the simple relation of one person to another, but is based on the special relation in these cases.
Justice is a constant and perpetual will to render to every one his right (Instit. i., tit. i).
Justice is a virtue which concerns our relations to others.
Its seat is in the will. It pertains to this virtue to rectify human actions, establishing an equality in the relations of one to another. This rectification makes a man so far good and his work good, which effect ranks justice among the virtues. And it is a virtue of the will, not of the intellect, because it does not direct our knowledge but rectifies our action. It is not a virtue of sense-appetite, because that does not consider our mutual relations, nor is it capable of being disposed to render every one his right.
Distinguish general justice, "legal justice," from private or particular justice.
Justice ordains man in relation to others. But this may be in relation to another individual, or to the community of which he is a part. As a general virtue it orders the acts of all virtues for the common good, just as charity orders them for Divine good, and this is also a general virtue. I call this general justice "legal justice" because by it man is in harmony with law, whose function it is to direct man's actions for the common good.
It is distinct from the virtues which it orders for the common good, because they have their immediate end, which is different from this higher end of the public good which general or legal justice gives them.
But man also needs to be ordered in his actions towards other individuals; hence there is also particular (or private) justice. Its special object is not the inward passions, which need other rectifying virtues, but those outward actions and those outward things by which men have intercourse with one another. Inward passions, in their effects -- sc., outward operations -- may extend to others, but they do not in themselves so extend; this is peculiar to justice.
Justice is not directly concerned with the passions of the soul.
This we have already seen; the subject of justice is the will; its matter, the things in which we are related to one another. But further explanation may be given of the relation between justice and inward passions. Actions are intermediate between outward things which are the object of those actions and the passions from which those actions spring. Sometimes there may be defect in one of those without defect in the other; as if any one take another's property, not with desire of getting it, but with a wish to do him harm; or, conversely, if he desire what is another man's, but does not will to steal it. The rectification of actions, therefore, so far as the outward part is concerned, belongs to justice; but the rectification of those actions in the inward part belongs to other moral virtues which are concerned with the passions. Thus justice prevents stealing as being against that equality which is to be preserved in outward things; but liberality prevents it as it proceeds from immoderate lust of riches.
It is especially legal justice, which is ordained for the common good, which extends to the inward passions of the soul, since the good of the whole is the end of each member of the whole. But even legal justice is chiefly concerned with the outward operations of those virtues which concern the passions, such actions coming within the scope of law. So law may punish cowardice, intemperance, cruelty, etc., if they show themselves in action (Nic. Eth. v. 2).
The proper act of justice is to render to each one what is his.
Justice is preeminent among moral virtues.
This is manifestly true of general, legal justice, because the common good is of more importance than the good of any individual. But even particular justice has the same preeminence for two reasons; first, it is in the nobler part of the soul, the rational appetite -- i.e., the will; while the other moral virtues belong to sense-appetite and its passions. And, in the second place, while those virtues have for their object the good of one person, justice aims also at the good of another. Justice ranks even above liberality; for in considering the common good, the former extends to all who are related, while liberality does not; and liberality which gives of one's own must be founded on justice which gives what is due.
Is it a special vice?
There are two kinds of injustice. The first is illegal, opposed to legal justice. This is a special vice, for it has a special object; sc., the general good which it contemns. But in its aim it is rather a general vice than a special one; for through contempt of the general good man can be led into all kinds of sins; and all vices, as repugnant to the general good, have the nature of injustice, are derived from it.
The other kind of injustice is based on inequality towards another, when one wishes to have more of good things than is just -- say, riches and honours; and fewer evils -- say, labours and losses. In this way injustice has its own special matter, and is a special vice opposed to private justice.
Private injustice is opposed, indeed, indirectly to all virtues, as regards their outward acts. Thus it is opposed to chastity in the act of adultery, to kindness in the act of homicide, etc.
Who is an unjust man?
Not always he who does an unjust action. For, first, if he did not intend to do an unjust thing, the action does not make him unjust per se, but per accidens. The action is unjust, but it is not unjustly done; it is not a wrong, an injury (adikêma). Secondly, the wrong may proceed from some passion, as anger or concupiscence; or it may be deliberately done, when the wrong per se gives pleasure. In this latter case it proceeds from a habit. But to do an unjust action from intention and choice is the mark of an unjust man. He is called unjust who has the habit of injustice. But unintentionally, or from passion, one may do an unjust action without having a habit of injustice.
Can any one willingly suffer wrong?
"Scienti et volenti non fit injuria." A man properly and per se does that which he willingly does; and he properly suffers that which he suffers contrary to his will because so far as he is willing, he is rather active than passive. No one, then, can, properly speaking, do a wrong unless he wills it, nor suffer a wrong unless he be unwilling. But, per accidens, and according to the "material" part of the action, one can unwillingly do that which is per se unjust, as when he acts against his intention; or he can willingly suffer an injustice, as when he of his own will gives to another more than is due.
(1) You may say that one can "rob himself," so violate equality, and suffer injustice. But when any one of his own free will gives another that which is not due, there is neither injustice nor inequality. For a man has property through his own will, and so there is no "injury" when anything is subtracted from it according to his own will, either by himself or by another.
(2) But you may say that civil law punishes nothing which is not unjust; and yet it deprives suicides of honorable interment. So one can willingly do injustice to himself. But I reply that man has a two-fold position in this world; and one of these positions concerns himself alone; and so, if he does any harm to himself, it may be some other sin, as intemperance or imprudence, but it is not injustice.
But also man may be considered as a part of society, or as the creature and image of God. And so he who kills himself does an injury to the state and to God. Therefore both Divine and human laws inflict a penalty.
(3) Another objection. No one does an unjust thing unless there be some one who suffers that injustice. (The two are correlative.) But he may do an unjust thing to one who wills it, as when he sells a thing for more than it is worth. So it seems that one can willingly suffer injustice. But I reply that in the doing and the suffering an unjust thing, we may look at the "material" part, the outward action considered in itself. In this respect, the doing and the suffering are always concomitant. But again we may look at the will and intention, the "formal" part of the action. In this regard one may do an unjust thing intending to do such a thing, and yet the other may not suffer injustice because he willingly allows the action. (Thus, in a case of fraud in a bargain, one may pay the excessive price, intending to make a donation of the excess to the cheat.) And, conversely, one may unjustly suffer, because he unwillingly suffers that which is unjust; and yet he who does the action will not be acting unjustly, because he is ignorant of the nature of what he does.
Whoever does an unjust action is guilty of mortal sin.
He directly violates the law of God; his act is opposed to charity, through which is the life of the soul. For every injury done to another is repugnant to charity which wills another's good.
(1) What shall we say of ignorance? Ignorance of the fact, of the circumstances, merits pardon; but ignorance of the law does not excuse (the laws of justice can generally be known by one who wills to know them). But he who ignorantly does an unjust thing, does so only per accidens.
(2) What shall we say of very trifling acts of injustice? Possibly some such thing may not be, properly speaking, perfect injustice at all; for it may be considered to be not altogether contrary to the will of him who suffers it; as if any one take an apple or some such thing, when there is probably no harm done, nor any displeasure resulting if the act be known.
Judgment is the definition or determination of what is just and right.
But that any one well determine anything in virtuous acts proceeds from a habit of virtue; and therefore judgment is an act of justice. It is an act of reason, indeed, perfected by prudence, but a fit disposition for judging rightly is also requisite; and so, in what pertains to justice, judgment springs from the virtue of justice, as in what pertains to courage it comes from that virtue. "He that is spiritual judgeth all things" (1 Cor. ii. 15), because from charity he has the disposition to judge rightly all things according to Divine rules, through the gift of wisdom; as the just man, through the virtue of prudence, pronounces judgment out of the rules of right.
But the meaning of the term judgment is amplified to embrace right determination in any things whatsoever, and in other virtues the judgment of him who is virtuous in their regard is required. But when we speak of justice, judgment is used in its restricted and proper meaning.
Is it lawful to judge?
It is plainly lawful so far as it is an act of justice. But this requires three things (1) It must proceed from the disposition to be just and to do just actions; otherwise it is against the rectitude of justice; it is perverse and unjust. (2) It must proceed from due authority, not from judging ]n things where one has no such right; otherwise it is usurped judgment. (3) Judgment must be made according to rational prudence. When certitude is lacking, as when one judges about doubtful or secret things by some light conjectures, such a judgment is rash and suspicious. Whichever of these three requisites is lacking, the judgment is illicit and vicious.
(1) The Lord said, indeed (S. Matt. vii. 1), "Judge not, that ye be not judged." But He prohibits rash judgment, or that which is not of good will, but from bitterness of spirit.
(2) S. Paul, also, said (Rom. xiv. 4), "Who art thou that judgest another's servant? To his own master he standeth or falleth;" which seems to indicate that God is the only judge. But judgment may be made by "the minister of God" (Deut. i. 17).
(3) But the apostle seems to say, again (Rom. ii. 1), that it is not lawful for a sinful man to judge; and all are sinners. And this is true when the judge's sins are open and similar, or greater; for great scandal arises from such judgments. But when the sins are not notorious and official duty requires, he can rebuke or judge with humility and fear. He does not thus condemn himself with new condemnation, but he shows himself worthy of condemnation for the same or like sin.
Is judgment from suspicion illicit?
Suspicion is an evil opinion of another based on light indications or proofs. And this arises in three ways: (1) He who is himself an evil-doer, conscious of his malice, easily forms a bad opinion of others. (2) He may be ill-affected towards another, and, despising or hating him, or being angry or envying him, he forms his opinion from trifling proofs, because one easily believes what he desires to be true. (3) Suspicion results from long experience. "The old are most suspicious, because they have had most experience of others' deficiencies" (Arist. Rhet. ii. 13). The first two causes of suspicion manifestly pertain to perverse affections; but the third cause renders the judgment less that of suspicion, inasmuch as experience gives more of certitude. Suspicion, then, implies a certain vice, and the further the suspicion proceeds, the greater the sin. But there are three grades of suspicion: (1) A man from light indications begins to harbour doubt about another's goodness. This may be light and venial sin, for it pertains to those human temptations from which life cannot be free. (2) One from light indications may hold for certain the wickedness of another. And if this be in a grave matter, it is mortal sin, for it implies contempt of our neighbour. "If we cannot avoid suspicions, since we are men, yet we can and we ought to restrain definite and fixed judgments." (3) A judge out of suspicion may proceed to condemn another. This is directly an act of injustice, and a mortal sin.
(1) It is true that in particular and contingent things we can never have absolute certainty; but we can have that moral certainty which results from suitable proofs.
(2) Suspicion, being only in the opinion of the mind, may seem to be doing no injury; but if one without sufficient cause has a bad opinion of another, he unduly contemns him; therefore he does an injury to him. (See 1 Tim. vi. 4.) The inward judgment, as it is related to the outward judgment, pertains to injustice in the same way in which anger is related to homicide. (The one may be venial, the other is mortal sin.)
Doubts respecting another's wickedness are to be decided in the more favourable sense (unless we simply suspend judgment, and "judge not at all ").
For we have no right to contemn or do injury to another without the most cogent reasons.
(1) It may happen that he who puts the most favourable interpretation on others' words and actions is oftenest deceived. But it is better that one be frequently mistaken in having a good opinion of a bad man than that he be more rarely mistaken in having a bad opinion of a good man. For injury is done to another by this, but not by the first error.
(2) It is one thing to judge of things, and quite another to judge of men. For in judging about things, there is no good or evil done to the thing, in whatever way we may judge of it. It is only the good of the judge which is in question; the good, if he judge rightly; or the evil, if he judge falsely; because the true is the good of reason, and the false is its evil. And therefore each one ought to strive to judge of things precisely as they are.
But, in judging men, the good and evil is chiefly on the side of him who is judged, who is deemed worthy of honour if he receive favourable judgment, and worthy of contempt if he be judged unfavourably. Therefore in such judgment we ought to aim to judge a man to be good unless manifest reason for the contrary appear. And if we err in our favourable judgment, the error does not pertain to the evil of reason, for its perfection is not found in knowledge of particular contingent things; but the error rather pertains to well-constituted affections. We are not now considering the application of remedies for spiritual diseases. There we may assume the worse condition, since the remedy which fits that graver disease will suit still more the lighter one.
Written laws.
These are made to set forth either natural right or positive right, but not both after the same manner. For written law contains natural right, but does not create it; it gets its force, not from the law, but from nature; whereas written law both contains and establishes positive right, giving it its authority and binding force. Judgment, then, must be made according to such law, otherwise it would fall short either of natural justice or of positive justice.
(1) Laws, indeed, are sometimes unjust. But, since law gives no force to natural right, it cannot take away or diminish the force of that right, because man's will cannot change nature. Therefore, if law contain anything against natural right, it is unjust, and creates no obligation of obedience. Positive law comes in where it makes no difference as regards natural right whether the action be done in one way or in another. Unjust laws, so called, are properly no laws at all, but rather corruptions of law.
(2) No law can comprehend all particular events. In some cases, if the law-maker were present, he would judge contrary to the letter of the law. The best laws, laws perfectly just, fail to meet some cases. If they were observed in those cases they would be contrary to natural right. In such cases judgment is not to be given according to the letter of the law, but recourse is to be had to that equity which the law-maker was bound to intend. "No consideration of right or benignity of equity endures, that what was beneficially introduced for the good of mankind should, by severer interpretation, be used against the advantage of those who are subject to law." If a just law-maker had considered such cases, he would have determined them by just law. (In doubtful cases, recourse is to be had to those who have authority to interpret, to judge, to decide.)
Usurped judgment.
Since judgment is to be given according to law, he who does so interprets the law in applying it to the particular case before him. But it belongs to the same authority of government to make law, and to interpret it (by practical application enforcing it). Therefore, as law can only be made by public authority, so judgment can only be given by the same. And so, as it would be unjust that any one should compel another to observe some regulation which was not sanctioned by public authority, so it is also unjust that any one should compel another to submit to judgment which has not the same sanction.
Divisions of justice.
There are two species of particular justice, commutative and distributive; for justice, in this sense of the word, directs each individual as part of the community. Now part may be related to part -- i.e., one individual to another; and commutative justice directs the relations which one man bears to another (as in buying and selling, and similar contracts).
But another relation is that of the whole to the several parts; that which belongs to the whole community in its relations to particular persons. Distributive justice directs this relation, assigning the common goods (honours, rewards, etc.) according to a certain proportion in dignity and merits.
In distributive justice the equality of one thing to another is not considered, but the proportion of things to persons; so that, as one person exceeds another, what is given to the one exceeds what is given to the other.
This is the reason why Aristotle spoke of a geometric proportion in distributive justice (Nic. Eth., v. 3). For the equality is not that of two things, but of two ratios (A's merits are to A's share, as B's merits are to B's share).
But in exchange, something is given to one person on account of what he has himself given. And, therefore, the one thing must be equal to the other, as in buying and selling; and if one have more of the other's goods than is equal to what he has given, commutative justice requires him to make restitution of the excess. And so a sort of arithmetical equality is established.
If we consider punishments, retributive justice, in this light, we shall notice that in actions and passions the condition of the persons concerned contributes to the quantity of the thing; for greater injury is done when a person holding official station is struck than when a private person is so injured.
We may examine commutative justice somewhat more in detail.
Justice, as we have seen, is concerned with outward operations; sc., distribution and exchange. These operations concern some external things, or persons, or services things, as when one takes away or restores another's property; persons, as when one injures another's person by striking or slandering him, or on the other hand pays him proper respect; and lastly, services which may be justly demanded from another or rendered to him.
In the exchanges between two persons which commutative justice directs, some are voluntary, some are involuntary. They are involuntary when one uses the property, the person, or the service of another against his consent, secretly through fraud, or openly through violence. Secretly one may take another's property, and we shall have the crime of theft; or it may be done openly, which is robbery. Personal injustice may be directed against one's own person, or against those who belong to us; it may be directly against our person, or against our honour and reputation. The person may be secretly injured, as by treacherous murder -- e.g., poisoning and the like -- or by open violence. Honour and reputation may be secretly injured by detraction, backbiting, etc., or by public abuse, false witness, etc. Through those belonging to us we may be injured by secret adultery, or by enticing from our service those who owe their work to us.
Voluntary exchanges are of very numerous kinds. If one simply transfer his property to another without any obligation so to do, as in a gift, it is not an act of justice, but of liberality. Justice implies something due, some kind of debt; as in buying, selling, hiring, etc. (See, further, Supplement, Chapter VI.)
Restitution is an act of commutative justice.
To restore is to put another in possession or dominion of his own property, according to the equality of justice, whether the thing has been possessed with the owner's knowledge and consent, as in a loan or deposit, or without that knowledge and consent, asin theft and robbery. (It is either a returning of the thing received, or compensation for loss.) It is not the mere giving back of a material thing, which may be a donation; it implies the obligation to do so, the returning what is justly another's.
The first meaning of restitution has to do with outward things which remain the same, and whose dominion can be transferred from one to another. But a secondary signification of the word transfers it to actions or passions which concern the honour or injury, the benefit or harm of persons. The action may not remain, but its effects abide; e.g., the slanderous word passes away, but the loss of a good name is a permanent loss, and demands restitution so far as that is possible.
To restore that which has been unjustly taken away is an indispensable requisite of salvation.
For only the just man can be saved, and restitution is an indispensable act of justice. " Render to all their dues. Owe no man anything but to love one another" (Rom. xiii. 7, 8).
(1) Sometimes complete restitution is impossible, as when a limb or even life itself has been destroyed. But where the equivalent cannot be returned, as in the case of the honour due to God or to parents, there the obligation is limited to what is possible. The loss of a limb cannot be fully recompensed, yet justice will demand pecuniary compensation or other restitution, according to the circumstances of the case.
(2) It is objected that one man may take away another's good name by saying what is true concerning that other; and he cannot restore a good character without telling a lie. But there are three ways in which a good name is taken away: (1) When the truth is justly spoken, according to the due order of things, and restitution is not due; (2) when the words spoken were false and unjust, and the restitution of a good name is bounden duty, by a frank confession of the error; (3) when the truth was spoken, but unjustly, as when any one betrays the crime of another without due warrant for so doing; and he is bound to restore the good name, so far as is possible, without telling a lie. One may truly say that he ought not to have spoken in such a way; that he unjustly injured the other's character; or, if he cannot restore a good character which he has taken away, and which every man is entitled to until it is lawfully taken away, he is bound to make other compensation.
(3) Sometimes what is done cannot be undone; unjust insult cannot be directly repaired. Yes; but its effects which remain -- sc., loss of respect before men -- may be partly repaired through special exhibition of reverence. This is partial restitution.
(4) Suppose one hinder another from obtaining some good -- say, a lucrative office; it is like taking it away. Is he bound to make restitution? Oftentimes that would be impossible. I answer that one might be justly kept out of this office for the honour of God, or the good of the Church or of the commonwealth, in order that a more worthy person should get that dignity. Of course, in such a case no restitution is called for nor any compensation. But this may be unjustly done, as through hatred, desire of vengeance, unjust prejudice, etc.; and, then, if the worthy be hindered before it has been settled that he shall have the office, some compensation is due according to the circumstances, but not full restitution, because there might have been other hindrances to getting the office besides this one. But if the matter have been settled, and any one for improper causes procure that the appointment be revoked, it is all one with his taking away the good which the other has, and equal restitution is obligatory, or compensation to the extent of his ability.
Is it sufficient simply to restore what has been unjustly taken away?
Two things are to be considered. First, there is inequality as respects the thing in question, which sometimes can exist without injustice, as when you him a thing which is to be returned with additional compensation for the use of it. So far the remedy for the unjust taking is restitution, which restores equality.
But there is, secondly, also the fault of injustice, which can exist without the actual taking away; as when one intends to use violence, but does not succeed in his attempt. The remedy for this fault is a penalty intlicted by the proper judge. Therefore, before condemnation by such a judge one is not bound to restore more than he has received; but after condenination, he is bound to pay also the damages imposed.
Is any one ever bound to restore what he has not taken away?
Whoever causes loss to another may be said to take away that in which the loss is caused, whether he himself gets any advantage from his action or not. And, therefore, a man is bound to restitution as far as he has caused loss. (See, in Supplement, the case of the possessor in bad faith, chap. V. § 3.) But there are two ways of causing loss. First, that may be taken away which one actually has. Such loss is always to be restored with equal recompense. Thus, if any one cause loss by destroying the house of another, he is bound to as much as the actual damage. But, secondly, one may cause loss to another by preventing his obtaining what he was in the way of getting. Such damage is not to be recompensed according to equality in the thing, because that might be giving more than the existing state of things demanded. A future possibility is worth less than a present reality ("a bird in hand," etc.). Some compensation, however, is due according to the condition of persons and things. Thus, if a field he injured which has been already sown, the indemnification is not equal to the entire crop expected from that field.
Restitution is to be made to the one who has less than his own right through the unjust taking away. But (1) the thing restored may be evidently very injurious to the receiver or to some one else, as if a drunken man's revolver should be put into his hands, because it belongs to him. In such a case restitution is not to be made, because it is ordained for the benefit of him to whom it is made. But also he who detains another's property, even in such cases, has no right to appropriate it to himself, but he is bound either to preserve it in order to restore it at a fitting season, or else to hand it over to some one else for safer keeping.
(2) But it may be said that he who unlawfully gives anything does not deserve to receive it back; and sometimes one unlawfully gives what another unlawfully receives, as in bribery or simony. Therefore restitution is not always to be made to the person from whom a thing has been received. But one wrongfully gives anything in either of two ways. The giving itself may be wrong and contrary to law, as in giving with intent of bribery or simony. Such a giver deserves to lose what he has given. He has no claim for restitution; but because he who receives does so wrongfully, he ought not to keep anything for himself, but to devote it to charitable uses. In another way, one gives wrongfully, because he gives for a wrong purpose, although the giving itself is not unlawful. (Query, the giving part of one's claim on government, when demanded by officials as a condition for just payment of the same?) A penitent prostitute would not be required to give back all which she had received, however shamefully and wickedly.
(3) Sometimes it is impossible to make restitution to the very person concerned, because he is dead, or too far removed, or is not known (as in common frauds in trade). As respects the unknown, if diligent inquiry give no information, the poor are to be the heirs of that unknown owner, an offering being thus made for the good of his soul. If he be dead, his lawful heirs take his claim for restitution. If he be far distant, there is ordinarily, in these days, no difficulty in sending to him, or, at least, in notifying him, that his rightful claim is waiting his order.
(4) One ought first to recompense those from whom, as from parents, he has received the greater benefits. Such benefits are far more than the worth of a loan or a deposit. So it may be said; but benefactors cannot be recompensed from others' property. If you have what is another's, that is first to be returned, except, perhaps, in case of extreme necessity of that benefactor, for "necessity knows no law."
Is he who has received what is another's always bound to make restitution?
He who has sinned is always bound to make satisfaction for his sin. But restitution is a satisfaction; therefore it is always obligatory. But this principle requires further explication. When one has received what is another's, two things are to be considered; the thing received, and the act itself of receiving. As regards the first, one is bound to restore it, as long as he has it, because what he has over and above what is his own ought to be taken away from him and given to him to whom it belongs. This is required by commutative justice.
But the taking of the thing may have either of three conditions. For (1) sometimes it is an injury when the thing is taken against the will of him who has lawful dominion of it, as in theft and robbery. And then the taker is bound to restitution not only by reason of the thing, but also by reason of the injurious action, even if the thing be no longer in his possession. For as he who strikes another is bound to recompense that other for the injury, although he himself have now no result from the wrong which he has done, so he who steals or robs is bound, to recompense for the loss sustained, even if he have no benefit remaining from the wrong; and, besides, he ought to be punished for the injury done.
(2) In another way, one receives another's property for his own advantage without doing any injury, as when he hires a piano. And then he who receives is bound to restitution not only by reason of the thing, but also of the receiving, even if he have lost what he borrowed. For he is bound to recompense the one who has given him a benefit, which recompense would not be paid, if loss were incurred by the lender.
(3) In the third way, one receives what is another's without injury, but not for his own benefit, as when a bank takes charge of valuables belonging to depositors. He who so receives is not bound by reason of the receiving; rather he confers a favour by doing so; but he is bound by reason of the thing. Therefore, if the thing be taken from him without any fault of his, he is not bound to make restitution; but it would be otherwise if he should lose it through gross negligence.{1}
May those who have not taken be bound to restore?
One is bound to make restitution not only by reason of the thing which belongs to another, but also by reason of injurious taking of it. And, therefore, whoever is the cause of that unjust taking is bound to make restitution. He may be the cause directly or indirectly. He is directly the cause when he induces another to do the wrong. This direct cobperation may be (1) by exhorting or commanding; (2) by counselling; (3) by consenting openly, or (4) by praising such an act; (5) by sheltering him who unjustly takes what is another's, or by giving him assistance; (6) by participation in the theft or robbery, or whatever the wrong may be, or by sharing its fruits.
Indirectly he is the cause of the unjust taking when he does not hinder it, although he can do so, and ought to do so, either because he (7) keeps back the command or counsel which would have prevented the wrong, or (8) because he withholds his aid which would have prevented it, or (9) because he conceals the fact.
Five out of these nine modes of cooperation require restitution; and, primarily, command, because he who gives his order is the first mover in the act, and he, therefore, whether he give his order openly or tacitly, is chiefly bound to make restitution; next, consent, in the case of him without whom the wrong could not have been committed; thirdly, sheltering the wrong-doer; fourthly, participation in the act or in its fruits; and lastly, not hindering when duty or office requires it. Thus the official guardians of justice are bound to restitution if through their negligence wrongs are multiplied.
In the other cases enumerated restitution is not always obligatory, for it is not always the case that advice or approbation is the efficient cause of the wrong. If it should be so, however, the adviser or the applauder before the wrong is done, incurs the same obligation.{2}
(1) It is not only he who executes the act, but he who in any way is the cause of sin, who is a sinner.
(2) He is principally bound who is principal in the act; viz., first, the one who orders, and, next, the one who executes the command; then the others in their turn. But if one restore to him who has suffered the loss, the others are released from this obligation. But those who are principals in the act, and have its fruits, are bound to restore to the accessories, if those have made restitution.
But if any one give a command of this nature which is not executed, there is no such obligation, since its object is principally to make right the loss incurred unjustly.
It may be said that no one is bound to expose himself to grave danger in order to preserve another's property, such danger as might be incurred by arresting or resisting a robher. But these are cases also which do not always demand restitution. It is the official guardians of the law (judges, military, police) on whom the obligation rests.
When is one bound to make restitution?
As taking another's property is sin against justice, so also is retaining it. For the owner is wrongfully hindered from its use and injury is done to him. It is not permitted to abide in sin for any length of time; therefore every wrongdoer is bound to make immediate restitution, if he can, or else to ask a delay from him who can grant the use of the thing in question.
(1) Affirmative precepts, it is true, do not oblige at all times, but this obligation is also negative "Thou shalt not retain what is another's."
(2) No one is bound to what is impossible; but he ought to ask for remission or delay respecting the obligation, either personally or through another who will not expose the unknown injurer.
The old law of wages expresses the universal rule in this matter (Lev. xix. 13), "The hire of the labourer shall not abide with thee until the morning."
{1} See, further, Supplement, on Restitution, chap. V. § 3.
{2} Formal cooperation is joining in the bad intention; material cooperation is affording to another opportunity for sin, while your action is not conjoined to his in will and intention. Material cooperation only may be given provided that (a) your act is good, or, at least, indifferent (b) your motive is good (c) the bad effect is compensated by immediate good (see note on scandal, page 260). But consider also (d) whether you cannot hinder another's sin, or are not bound in charity to do so; (e) how great the sin is; (f) the probable effect of your refusal upon the sinner (g) how near to the sin your cooperation will be; (h) what right you have to do what is in question; (i) how far the sin does injury to others; (k) is there serious loss to yourself in refusal?
(Qu. 1. Communicating those privately known to be unworthy? 2. Working a distillery or other property frequently abused? 3. Liquor sellers? 4. Church lotteries? 5. Paying part of your rightful claim on government to a committee on claims in order to secure the rest? 6. A clerk of a corporation is bidden to violate a law of the nation which is habitually violated by other corporations also, and he is bidden to withhold endamaging documents from the inspection of the court? 7. Paying a legislator in order to secure the passage of a necessary bill?)
In general, observe that some things minister directly to sin in these intentional cooperation may be "partaking of other men's sins." But other things may not be directly sinful which are often abused. Herein, when the cooperation does not violate the law of justice as laid down in the text, it may or may not violate the law of charity. (Duct. Dubitant., IV. i. Rule 11).
And civil law certainly has the right to interfere and forbid what, otherwise lawful, is frequently abused.
In common law criminal cooperation is participation in some way in the felonious design. But if counsel is given for one crime, and another, different in object and not merely in circumstances, is committed, the counsellor is not responsible. An accessory after the fact is one who conceals the offender or aids him to escape.
(Qu.: Suppose that he is a near relative? Common law makes no exception of such a case; does moral law?)
Compounding of felony is punishable by common law, and is an insult to justice; but assaults and other similar misdemeanours (e.g., trespass) may be compounded (Blackst.,iv. 13, 38, 188).
Conspiracy, by common law (modified in the United States), is an agreement to commit an act injurious to health, morals, trade, commerce, or law. But if there be no felony, there must be some overt act to constitute it a crime.