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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 26

 

The Excellence of Justice

 

Returning to the subject of Justice, one of the characteristics of the Latin textbook I am using is that the author repeats quite a bit of the material while looking at the matter under consideration from slightly different perspectives.  A good example is the “third question” he treats in Chapter 1 of Part I of the Treatise:  Justice in General.  Last time, we treated of the first and second “questions” of Chapter I (Justice Considered in Itself) namely, 1st, The Concept and Definition of Justice, and 2nd, The Object of Justice and How it Differs from the Other Virtues.  The third “question” is:

 

THE EXCELLENCE OF JUSTICE…

 

Every virtue causes the person possessing it to be good.  (The “good” of the human person lies in acting in accordance with right reason).  But of all the virtues, Justice is the one that causes a person to act in eminent accord with right reason.  Thus it is the most excellent among the purely moral virtues.

 

The above is asserted in spite of the fact that some moralists have objected that Justice cannot be the most excellent of the moral virtues because by it one merely does what is “necessary”.  The objection is overcome by remembering that the obligation to be just is not a “physical” necessity but a “moral” one.  The beauty of the virtue of Justice lies in the fact that it enables one freely and promptly (and joyfully?) to render what one “owes”.

 

Although Justice is an altogether “special” or “unique” virtue, because its effect is properly to order one’s relationships to others, it does embrace two distinct “species” or kinds.  A person’s relationship needs to be ordered to all others in common, that is to the Community, and also needs to be ordered to one or more others individually.  The first mentioned kind is called LEGAL JUSTICE and the second is called PARTICULAR JUSTICE.  This latter in turn is subdivided into Commutative and Distributive Justice.  Commutative Justice governs mere interpersonal “exchanges”, while Distributive Justice governs interpersonal exchanges between a “superior” (A representative of the community in which we live) and a “subject” (or ordinary member in the community).  Another name given to LEGAL Justice is GENERAL Justice by reason, first of all, of its object, which is the common good, and secondly because of its effect, which is to coordinate and direct all other external acts of virtue to the attainment of the common good.

 

Like all the other Cardinal virtues, Justice is the one that is most difficult to acquire and exercise among all the virtues affiliated with it.  This flows, of course, from the definition we gave in a previous conference, namely, that quality of soul which enables one not only to be disposed to but also actually to render to another what is owed in the EXACT measure.  For this reason it is the “foundation” of all the virtues allied with it, wherein for one reason or another it is impossible to render in the EXACT measure what is owed to another (e.g., to God, or to parents, as we stated in a previous conference).

 

Justice is the most excellent of the “strictly” moral virtues (Fortitude and Temperance are the others) because 1st, it resides in the Will the more noble faculty of the soul, and 2nd,    because it perfects the individual not only in himself but also in relationship to others.  However, it is not the greatest of all the Virtues.  The Theological Virtues of Faith, Hope and Charity are the greatest of all because their immediate “object” is God Himself.  Even Prudence, an “intellectual” virtue is greater than Justice in spite of the fact that the Will is more noble than the Intellect, because Prudence “governs” and coordinates ALL the virtues.  The virtue of Religion and the virtue of Repentance are also considered greater than Justice because 1st, they draw a person closer to God (in friendship), and 2nd, they render Honor to God more directly and immediately.

 

This last statement is also representative of the fact that “values” tend to “change” with a “change of perspective”.  That is to say, considering Justice and Religion (and Repentance) from the point of view that each attempts to “render what is due” to another, Justice is greater; because it “attains” the exact measure while the other two do not.  Considering them as “virtues”, Religion and Repentance are greater because the “good” they achieve surpasses the “good” achieved by Justice.

 

Chapter 2 of the Part I of the treatise on Justice follows, and it treats of RIGHTS.   And the first “question” thereof is entitled:

 

Concerning Rights in General…

 

According to my textbook, the concept of “a RIGHT” is so fundamental that it cannot be properly “defined”.  Nevertheless, it is possible to talk about and describe the concept so that it can be more fully understood.  Thus, a RIGHT is a kind of “relationship” that “unites” a rational being to something as its very own, which “relationship” confers a power over that “something”.  This “power” does admit of a definition, though, and it is:  The lawful, inviolable moral faculty of having, doing, or demanding something as exclusively one’s own, to one’s own personal advantage.

 

A MORAL FACULTY:  That is, not a “physical” power but a “lawful” power, one that has its origin in a LAW of some kind (natural, divine, positive civil or ecclesiastical law), and which is in accord with right reason.  Thus only a “rational” being is a subject of Rights.  (And, properly speaking, there are no such things as animal rights).

 

INVIOLABLE:  The exercise of which “right” cannot “lawfully” be prohibited or impeded by others.  A RIGHT in one person engenders in all others the OBLIGATION to respect that right, i.e., to honor it, to place no obstacles to its exercise.  Thus a “right” includes in itself the “coercive power” to restrict and suppress any attempts to prohibit its exercise or to “infringe upon it” in any way.  However, this latter “coercive” power cannot be used in “arbitrary fashion”; it, too, must be “lawfully” exercised.

 

TO HAVE, TO DO, OR TO DEMAND something:  Which indicates the threefold object of a “right”, namely, 1st the POSSESSION of external things, 2nd, the EXERCISE of one’s personal, human faculties and capabilities (which also includes a “non-exercise” of the said faculties and capabilities, e.g., to be exempt from military service), and 3rd, CONDUCT on the part of others, that is, that they GIVE something, DO something, or REFRAIN from doing something.

 

AS EXCLUSIVELY ONE’S OWN AND FOR ONE’S PERSONAL BENEFIT: This last element based upon the “relationship” or connection that exists between the possessor of the Right and the “thing” in question, which connection is not shared with others.  Thus the “thing” in question is for the service or the utility of the possessor alone.

 

The connection spoken of here is a “moral bond”, that is, one perceived by reason, as a result of which one “understands” that the “thing” in question really “ought” and “should” be destined to the use and benefit of the one who is the other term of the “connection”.  This connection therefore is called the ESSENTIAL, or CONSTITUTIVE BASIS of Rights.  If the connection exists, the Right exists.  If the connection does not exist, neither does the Right.

 

Another way of thinking about that “connection” is in terms of “entitlement”.  Thus it is possible to see how the “connections” that are the bases of Rights arise:  By the very “nature of things”, whoever, using materials he owns and instruments he owns fabricates or manufactures an object, creates a “connection” between himself and the finished product that no other human being shares in.  Therefore, right reason dictates that the artisan is the ONLY person “entitled” to use or dispose of the object for his/her own personal benefit (even when that includes giving it away or selling it).  From which it is evident also that the “connection” or “entitlement” can be given away or sold.

 

The Proximate Fundamental Basis of Rights…

 

The “connection” or “entitlement” given above, as an example of how “concrete, specific” rights arise is itself based upon deeper foundations upon which ALL Rights of Whatever Kind are established.  The “closer” of them is the very Dignity and Inviolability of the Human Person.  Let me quote here what my textbook says about the “person”:

 

A Person is essentially an intellectual, incommunicable being, subsisting within itself.  On the one hand, the Person is the mistress (domina) of its own actions because the person is free.  On the other hand, incommunicable (unshared-able) and subsisting within itself, a “person” is of itself and for itself in “being” and “acting”.  Hence it exists chiefly for its own proper good and its own proper end.  It does not exist “merely” or “chiefly” for the good of others, and cannot be considered by others as a “means” subordinate to the others’ proper good and proper end.  [Note:  in other words, a Person IS NOT a Thing].  Rather, the Person is to be revered as a Being existing beside [and on a part with] others and enjoying the same dignity of all others.  It cannot [lawfully] be deprived of its being “ordered” toward its own proper good or end.  Therefore, every person is inviolable in so far as it is tending to its own proper end.

 

Having said that, we argue thusly:  A Person enjoys [is possessed of] the inviolable faculty of ordering itself toward its proper end.  But one cannot effectively attain one’s end without means thereto, including external means:  exterior things – the use of one’s faculties – things being given or done by others, such as honor, assistance, being governed by superiors, etc.  Thus a Person has the inviolable power to do and to obtain that these means be ordained to its proper end.  This is what we call the exclusive “right” to make use of such means.

 

The Ultimate Fundamental Basis of Rights…

 

The inviolability of the created person is the proximate and secondary foundation of Rights.  The primary or ultimate foundation or source of Rights is God Himself.

 

After all, it is God Himself who has ordained us toward a certain, specific end, and He wills that we [freely] attain it.  He therefore should give us all the means necessary to attain that end, and to see to it that we have the inviolable power or capability (Right) to use the means to tend toward it.

 

Errors Concerning the Nature and Basis of Rights…

 

1.       One error mentioned in my textbook is called Natural Monism (Individualism) but the label is unimportant.  This error holds that the basis of Rights is Brute Force, i.e., raw physical power, and it consists in “Being the Stronger power”.  We are all familiar with this.  It is encapsulated in the saying:  MIGHT makes RIGHT.

 

2.       Another, called Juridical Positivism states that if all humans remained “individuals”, the basis of Rights would indeed to be the “physical power of the stronger”.  However, (the theory continues), since “society” is necessary “for the sake of the weak”, that they might live securely, the “basis” of rights is transferred to the “collective will and power” of the community.  As a consequence, the difference between “just” and “unjust” is determined by external human authority.  Thus, all “rights”, i.e., their existence and content, are conferred by the human community itself.

 

3.       Still another error is called Transcendental Rationalism.  It is arrived at by reasoning in this fashion:  There is a difference between Morality and Right.  Morality has to do with “inner peace”; right has to do with “outer peace”.  Just as the “internal freedom”, of a rational being, which is an end in itself, is the foundation of moral obligation, so also “external freedom” is the basis of Right.  Morality is concerned with the obligation of inner conscience, that is, of the essentially autonomous practical reason (autonomous is defined in this theory as:  independent of external law); Rights are concerned with external law and external coercion.  Therefore the juridical order is independent of the moral order.  However, “external liberty” is a necessary complement of “internal liberty”.  So that RIGHT is a condition of individual liberty, or rather a dovetailing of individual liberties.  The individual liberty of one person must be accommodated to the individual liberty of another, whence it follows that the freedom of the individual must be “coerced” or restricted in favor of the freedom of everyone.  For all this, however, a certain common knowledge is required.  Therefore this theory postulates a “social pact” which establishes a civil society by which RIGHTS are determined.  (It is obvious that such a theory excludes God, the Creator of Human Nature, and denies any input to Divine Revelation when it comes to “determining” Rights and making Laws).

 

4.       Somewhat similar to the above is the theory that states that in place of a “social pact”, there is a tacit, implicit consensus that acknowledges that the freedom of one individual must be restrained to permit a like freedom in others.  “Society” comes into being because the individuals comprising it “join forces” to establish it, which society alone can preserve the freedom of all, and which society “determines” the rights of everyone.  This error is called the Subjective Individualism of Right”.

 

5.       In reaction to (4) above, there was elaborated the error called the Absolute Objectivism of Right.  This theory denies a “tacit, implicit consensus of free individuals” as the origin of society, and postulates instead a “universal will” which is the basis of an “absolute moral organism”, which we know as “the State”.  There is in turn an “absolute organic morality” which is realized and expressed by “The State”.  Thus the State is the supreme controlling authority in human affairs, and therefore, the source and basis of all Rights.  This is said to be the “undergirding” of every Socialist State.

 

6.       Finally there is the theory proposed by the Historical School.  This, too, was elaborated as a reaction to most of the theories mentioned above.  All of them, including this one, as you may have guessed, were devised by men who were either atheists or agnostics, and who would not concede the existence of A supreme, Intelligent, Loving Being, Who created us and Who is keenly interested in us individually and collectively.  This error alleges that there is no concrete specific and valid Right which has not had its origin in positive law (legislation), that is, in the History of Laws and Customs.  The existence of a “universal will” is denied, and the “union of individual wills” is retained.  The State is not the origin of Rights, as the previous error alleges, rather, the State “emerges” as a result of the evolution of Rights.  Its tenets are summarized as follows:

 

There is no Right, strictly speaking, which does not proceed from legislation, and “Right” is distinct from “Morality”.  Nor does “Right” have any other fount or source but history, that is, historical customs and established laws.  The Science of Law is the evolution of written laws and legal customs.  The subject (possessor) of Rights is the People, and every Right is merely human.

 

Having identified the false theories, the author of my textbook proceeds to underscore the errors, explicit or implicit, that are found therein, and to state true doctrine:

 

1.       It is false to say that “Right” is totally independent of “Morality”.  Rather, Rights constitute an objective component of the Moral Order.  RIGHTS in others are the “object” of the virtue of Justice, which is a moral virtue.  RIGHTS in oneself confer a moral power.  RIGHTS are “normative” in the sense that “laws” are passed for the express purpose of governing relationships based upon those Rights, and all positive law (legislation) to be binding, must somehow be derived from the Natural Moral Law.

 

That a Natural Moral Law exists is indicated in Scripture (Romans 2, 14, 15):  “When the Gentiles who have no [positive] Law do by nature what the Law prescribes… They show the work of the Law written in their hearts”.  Which Natural Moral Law is defined as follows:  The intrinsic orientation of the Rational creature (the human person) toward its ultimate end, which orientation is founded upon human nature itself, and which is perceived by the Natural Light of Reason.  It is described as A participation in the eternal law [of God] by a rational being, that is, the eternal law impressed upon the mind.

 

2.       It is not true that physical force is the basis of Rights.  In truth, physical force pertains to the “material order”, whereas Rights, being moral powers, pertain to the spiritual order.  Since the use of “physical force” (and anything else that pertains to the material order) is governed by the moral order, it stands to reason that physical force or power cannot be the basis of Rights.

 

3.       Not all rights arise out of “society” or positive law (legislation).  For example, the “right to life” and the “right to educate one’s children” exist independently of legislation.

 

4.       The proposition that Rights are created by legislation leads to absurdity.  Conceivably, human positive law might decree that human beings have the “Right” to treat other human beings as if they were “beasts”.  This would also be an example of the truth that positive law is binding in conscience only in so far as it does not contradict “natural law”.   We, (all persons of good will) have the inborn sense that “humans” are to be treated “as humans”.

 

5.       It is false to say that “freedom” is an end in itself, or that the “autonomy” of the human person means that he/she is able to “decide” what is moral or immoral for himself/herself.  Rather, each of us is autonomous in the sense that no one else is going to achieve for us the eternal destiny we were created for (to share in the eternal Life and Happiness of God).  Each of us must do that for himself/herself.  We are “free” in the sense that no one, not even God, is going to “force us” to do what is necessary to be united to Him forever in Love.

 

In Conclusion…

 

In order that a RIGHT exist in a person, three conditions are required:

 

1.       Some entity (a thing, some kind of personal conduct, conduct on the part of others) which serves the legitimate interest of the possessor of the Right;

2.       A moral “bond” or connection to that entity;

3.       The ”bond” or connection gives rise to an obligation or duty in others either to refrain from interfering with the exercise of the Right, or to give, or do, or not do, something in virtue of that Right.

 

In order that an entity (as above) can be the “object” of a Right, three conditions are also required:

 

1.       That it be within the realm of human possibility and power (no one can claim a Right to sunshine or rain).

2.       That it contribute to the authentic “well-being” of the one possessing the Right.  No one can claim a right to what is harmful to one’s authentic best interests;

3.       That it is capable of being “appropriated”, i.e., set aside for the exclusive benefit of the one possessing the Right.

 

There are five elements that constitute a Right:

 

1.       A “subject”, namely, the one possessing the right, i.e., the one possessing the “moral faculty” to have, to do, or to have done.

2.       It must be a specific “kind”, e.g., the Right of Proprietorship, the Right of a Lessee (one who rents).

3.       An “object” or the “matter” of the Right (cf. above).

4.       The “term” of the Right, that is, the person or persons who are “obligated” by the existence of the Right in its “subject”.

5.       A Title, the cause or origin of the Right.

 

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Next time we will treat of “question two” of this Chapter on Rights in General.  It is entitled, “the Kinds of Rights.”

 

 

 

 

 

 

 

 

 

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