Jacques Maritain Center : Elements of Moral Theology


THE subject of the next three chapters -- viz., Right and Justice, their violations through injury, and contracts based on justice -- might here be considered as questions of Moral Theology alone, and no reference might be made to civil law except when it conflicts, which it rarely does, with the principles of our science.

But, even with all the rudeness necessary in general laws, which, as such, cannot recognize the inevitable exceptions occurring and recognized in morals, the civil and the common law are in large measure so admirable an application of justice to human life, and the practical use of some acquaintance with the first principles of common law as thus applied is so great, that it seems best to consider onr topics both from the point of view of Moral Theology and of the laws of civil society.

§ 1. Definitions and divisions.

Justice, as we have seen (Part III., page 274), is a moral virtue inclining the will to render to every one what is right, i.e., his due. Our Lord gives the law and its criterion (S. Matt. vii. 12), although His law, no doubt, extends beyond the natural virtue of justice to the domain of supernatural charity. Duty, the obligation of giving what is due, is correlative with right.

Divisions. (1) Legal justice was defined (page 275) as the form of justice which gives to society its rights. But if we take the narrower definition of it -- sc., civil justice expressed in written law -- the supremacy of moral over legal justice is emphatically presented in Blackstone's remark (iii. page 392), that "a second trial is not granted in cases of strict right or summum jus, where the rigorous exaction of strict legal justice is hardly reconcilable to conscience." Summum jus summa injuria.

The same principle will be illustrated, also, by the case of "accident;" special inconvenience of general law from unusual circumstances will warrant equitable jurisdiction from a court of chancery (Blackst. iii. 431). It will rectify some mistakes, some frauds, which may not be cognizable by common law; it will issue injunctions to prevent invasion of rights.

(2) Distributive justice gives honours and imposes burdens in due and just proportions (Part III., page 285).

(3) Commutative justice regulates exchange between private individuals.

(4) Retributive justice is a form of (2), exacting penalties for wrong- doing.

Note that in particular matters of justice, ordinarily and regularly, lawyers are the most competent judges; in matters of justice which are to be conducted by general rules, as, also, in religion and charity, theology is supreme (Duct. Dubitant. I. iv. rule 10).

Jus, right, is the lawful claim to do, to keep, or to obtain anything whatsoever for one's own benefit. It is the object of the virtue justice.

Divisions are (1) right in things already possessed ("things real"); (2) right to things not so possessed ("things personal"); i.e., jus in re, and jus ad rem. These give rise to real and personal actions in law.

Property is rights in things (Blackst. ii. c. ii.). This, as jus in re, is either real or personal, the former being lands, tenements, and hereditaments. But the last division, expressing all that can be inherited, will include, also, personal property (c. xxiv.). To distinguish then things personal, they are called chattels, which are either chattels real, as a lease or a mortgage, or chattels personal, viz., movables (c. xxv.).

Property, as possession, is either absolute or qualified. This fact will give ns a four-fold division of right; viz., (1) dominion; (2) use; (3) usufruct, use with further benefits; (4) service and jurisdiction, as the bishop's right, the paternal right, the right of masters, etc.

§ 2. Dominion.

Absolute dominion belongs only to God (Ps. xxiv. 1). But man can rightly have property as against other men (Part III., page 302), receiving it from God, and being in it independent of others. This is both natural law and positive Divine law (Gen. i. 28).

Human dominion, or the right to dispose of a thing in any manner as one's own, is (1) perfect when there is the right to dispose of the thing and of its use; (2) imperfect if the right cover only one of these.

"Eminent domain" ("dominium altum") is in the state, since its claim is superior to that of individuals; "domlnium humile" is that of private persons.

A qualified right of property is in many cases recognized as existing (1) in the case of water, as appropriated by occupancy (Blackst. ii. 403). Obstructions, therefore, the fouling or diverting of water, etc., may constitute legal injury as well as a violation of justice, and often of charity.

(2) In "bailment," also -- i.e., delivery of goods in trust -- qualified property is acquired; e.g., by a carrier, an innkeeper, a pawnbroker. A servant in charge does not so acquire.

Jus ad rem is another example of qualified property, called "property in action," or "chose in action;" e.g., money due on a bond, or a promise or covenant to do anything (Blackst. ii. 397). If there be failure in such a case, common law will give compensation for the qualified property.

Imperfect dominion is direct when it is over a thing; it is indirect when it is over the use of the thing.

Man has, by Divine gift, the second, "dominium utile," over his goods of body and soul. He has not direct dominion in either of these goods. (See notes on the Sixth Commandment, page 515.)

Over external goods, however, be has both direct and perfect dominion. (Qu.: Can he rightly have dominium utile over another person?)

Children and the insane are not incapable of dominion through a guardian. With respect to dominion on the part of minors, common law is more liberal than the civil law -- i.e., the rights of parents over children, so far as regulated by human law, are more restricted by the fornier; but both common and civil law agree with the law of nature that the parent has perfect dominion over his child's earnings while that child is under age, "the child living with him and being maintained by him" (Blackst. i. 453). But the former makes the emancipation of the infant very easy; for the father may relinquish all his right to the services and earnings of a minor child, in which case the child will have perfect dominion over them.

In the case of other property held by the child, as by gift, bequest, etc., the father, if he be appoiiited guardian of that property, stands in the same position as a trustee; and the child's dominion is limited by the power of administration which is in the parent as guardian of the property in question. The father receives the profits of his child's property, but must account for them when his child comes of age.

§ 3. How is dominion acquired?

(1) Dominion is acquired by "occupancy " -- i.e., the actual taking possession of what belongs to no one; e.g., wild land or animals -- under requisite conditions; sc., (a) that the thing is a proper object of private dominion (Qu.: land?), and belongs to no one; (b) that no human law stands in the way; (c) that the occupier intends to make it his own, and actually takes it (Instit. III. tit. i.).

Ferae naturae (Blackst. ii. page 392). By jus gentium beasts, birds, and fish are the property of the captor, and may be taken anywhere, but the owner of the land may prohibit entry thereon. If such wild animals escape from their captor, they become the property of any one who captures them again. By common law, however, there is a qualified property in them, "per industriam hominis," in confining or taming them. But this is only while they are actually possessed through occupancy, unless, like turkeys and pigeons, they are in the habit of returning. (Op. the seal as an international question in 1891.) It is felony, however, to steal those which are used as food (page 394). Dogs, cats, etc., are not so protected by common law.

(2) Finding, or discovery, is either of (a) "thesaurus," money lost; or (b) of other things lately lost; or (c) of things abandoned; or (d) of things not owned (Instit. ii. tit. i. 9). Thesaurus goes with the land if found by the owner of the same; "treasure trove," however, may be reclaimed by the owner if he appear. (Op. Roman and common law.)

(3) Prescription either (a) gives some acquired dominion; or (b) some positive obligation, though unfulfilled, is released through lapse of time. Divide, then, into acquisitive and liberative prescription.

Human law has the right to sanction this mode of obtaining dominion, without the previous owner's consent, as morally necessary for the common good; for otherwise strifes would often arise from uncertain possession. Due prescription in transferring dominion therefore is obligatory in foro conscientiae.

There are five conditions of lawful prescription

(a) "Sit res apta; (b) fides bona sit; (c) titulus quo que justus; (d) possideas juste; (e) completo tempore legis."

The first condition (a) requires that the thing possessed be a salable thing over which dominion has been exercised (not a loan, etc.), public, undisputed, certain, and uninterrupted.

(b) The second condition is a firm persuasion that the title acquired is one's own; otherwise there is moral (Qu.: legal?) obligation of restitution. The same principle applies to liberative prescription.

Ignorance of the law does not constitute this "good faith;" although ignorance of facts may do so (Digest. xxii. vi. 4, 6). According to the civil law, subsequent knowledge of facts does not vitiate legal possession, whatever moral obligation there may be (Digest. xli. iii. 48).

(c) The title must appear to be a true one; e.g., buying, gift, etc.

(d) But a long period of uninterrupted possession is equivalent to a title of some other nature. This length of time, however, is different when accompanied with other title, and again when so unaccompanied. It differs also widely in the case of movables (in most cases nuder the statute of limitations the period being six years) and of immovables, which require a much longer period for prescriptive title.

Thus, by the statute of limitations, no entry shall be made upon lands unless within twenty years after a man's right shall accrue (Blackst. iii. page 178).

Prescription is suspended by the minority of the claimant, and by other insuperable obstacles.

It does not apply to anything fraudulently obtained, for there must be bona fides; and no length of possession under such circumstances can make a wrong become a right.

Liberative prescription, also -- i.e., lapse of right -- has its term fixed by civil law. But what law permits may not always be what a good conscience can rightly claim.

(4) Accession. The thing acquired may be so united with one's own property by natural processes that dominion is gained over it. Thus, the offspring of brutes goes with the mother, "partus sequitur ventrem" (Instit. II. i. 31, 33 and trees, etc., go with the soil. The bona-fide possessor of land is entitled to all gathered fruits, unless the owner claim them; but there can be no action for gathered fruit against the "usufructuarius" (vid. infra). But if one be possessor of the land mala fide, he must restore what he has gathered or compensate for it.

"Specification" is another example of accession. Manufacture with another's materials, if in good faith, gives property in the product, the materials being paid for (Qu.: legal rights?). This if the thing be properly new; but if merely the form be altered, as in making a coat, the owner of the material can still claim it (Blackst. ii. page 404).

Alluvion, another example of the same, is the slow (not the sudden) growth of land on the bank of a running stream, which gives rightful claim to the accession.

"Adjunction" is a similar example, If a man build on his own ground with another's materials, he owns what accedes to the soil, but the other has a lien on the materials. If any one build on rented ground, the building becomes the property of him to whom the ground belongs; but if the builder acted bona fide he must he compensated; if he acted mala fide he can only take away the materials. (Note that the present law of "betterments" is uncertain.)

In case of confusion of goods without consent of both parties, the entire property belongs to him whose dominion is invaded (Blackst. ii. page 405).

We are discussing right and justice, but the higher law of Christian charity may overrule the demands of strict justice in all such cases.

(5) Conveyance. Another's title may be transferred to a new owner for a satisfactory consideration, or as a gift. (See the chapter on Contracts.)

Use and usufruct. The first is the right of using another's property, the substance of it being preserved for the owner; the second is the right of using and enjoying it; i.e., of taking the fruits for one's own on like conditions. This gives dominium utile. The fair expenses connected with the thing are to be paid, and also all ordinary obligations; e.g., an annuity on the property. It must be restored in reasonably good condition, and the owner must not injure the usufruct; e.g., parents using children's goods. Use, then, does not apply to perishable goods, as articles of food.

The usufructuarius can sell his right, but the usuarius cannot.

Tenant right, subletting, etc., sometimes involve grave moral questions which cannot be here discussed. (See, further, the chapter on Contracts.)

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