Conferences on the Virtues
By Fr. Bruno Cocuzzi, ocd
Number 27
THE KINDS OF RIGHTS
To determine
and distinguish the various kinds of rights that exist, it is helpful to think
of whence they arise. Hence we speak of
Natural Rights and Positive Rights. The former arise out of the very “nature of things” and the
latter out of the positive free will of God and of men. Thus, Positive Rights are further divided
into Divine positive and Human positive Rights. Human positive rights are further subdivided
(for us Catholics) into Civil and Ecclesiastical (or Canonical).
There is a
significant difference between Natural Rights and Positive Rights. Natural rights proceed indirectly
from the positive Will of God. That is,
given the fact that God has created this present, actual universe, and
has given to every order of being therein its distinct, specific, invariable
“nature”, certain relationships and therefore Rights “naturally” spring
into being. As a result, “Natural
Rights” are binding upon every human being, and are basically
“unchangeable”. In other words, Natural
Rights have to do with “absolutes”.
Positive Rights
presuppose the existence of the created “natural” relationships among
the various “orders of being” as something “unchangeable” and “absolute” and
are concerned with what is “contingent” or “relative”.
Natural Rights
are such that, in regard to them, human acts of patterns of conduct are either
“naturally (intrinsically) good” or “naturally (intrinsically)
evil”. Thus Positive Human Law cannot
change naturally good acts into “evil” ones, nor can it change naturally
evil acts into “good” ones, regardless of what human legislators and
individual “consenting adults” may think. For that matter, neither can “Divine” Positive Law, since God is
Faithful, i.e., having willed into being our present, actual universe and in
particular, the invariable human nature He has created for each and
every one of us, He cannot deny or ignore the “Rights” that arise
therefrom. Even Divine Positive
Law has to do only with what is “relative” and “contingent”, for He “respects”
(and human legislators should also respect) the immutable foundations of
“natural” Rights.
Although it is
perfectly logical and true that Divine Positive Law has to do only with what is
relative and contingent, we have to keep in mind also that not all the LAWS God
as laid down for us in Sacred Scripture, concern, properly speaking, the relative
and contingent. Because Original
Sin has darkened the human intellect and weakened the human will, it is not
possible for even the “brightest” human being “unerringly” to discover and
carry out the entire, immutable NATURAL LAW that is incumbent upon all human
beings in virtue of the NATURAL RIGHTS that arise out of the very Nature of
created Beings. Thus it was necessary
that God reveal in Sacred Scripture many “dictates” of Natural
Law along with precepts that were merely “relative, contingent and therefore
changeable”. Thus the Ten Commandments,
for example, are based upon Natural Rights and constitute so many explicit
statements of Natural Law for our special guidance and protection. Most of the remaining “corpus” of the Mosaic
Law, which was binding upon Israel of the Old Testament, WAS relative and
contingent, and therefore CHANGEABLE.
When we read in the New Testament that God abolished the Old
Covenant (Law) and replaced it with the New Covenant, it refers to
the merely contingent and relative. And
when Jesus said that he HAD NOT COME to abolish the Law BUT TO FULFILL it, he
was referring to those elements in the Mosaic Law that WERE (and REMAIN) based
upon Natural Rights, and therefore part of Natural Law.
And because the
“darkness” in the intellect and the “weakness” in the will still continue to
plague us human beings, and in view of the fact that the perverse immorality
that is rampant in western Society today has aggravated and intensified the
“darkness” and the “weakness” that are the result of Original Sin, we of this
day and age are in special need to a Moral Authority and a CHARISM, given and
inspired by God the Holy Spirit, that can keep us from falling into error in
regard to Natural Rights and Natural Law.
That authority and that CHARISM, of course, reside in the successor of
St. Peter, our Holy Father, the Pope.
Positive
rights, therefore (within the realm of the contingent, the relative and the
“changeable”), are created directly by means of both legislation (public
rights) and interpersonal agreement (private rights). But the principle still remains: the moral goodness or evil of human acts, or
patterns of conduct, are always determined in relation to “Rights”. Thus, within the realm of the “changeable”,
conduct that is intrinsically (naturally) neutral can be made “good
(legal)” or “bad (illegal)” by human legislation and by the mutual agreement of
private individuals. (We are speaking,
of course, of ONLY those mutual agreements that civil or ecclesiastical authorities
can and will enforce). And when,
in the opinion of legislators, “circumstances” require it, what was formerly
“legal” can then be made “illegal”, and vice versa, because “Rights” created by
positive law can be abolished or amended (changed) by the same authority that
created them. We cannot speak of human
positive laws in terms of true “good” and true evil” unless they
“reflect” the Natural Law and make it explicit. They can, however, be concerned with the mere “circumstances” within
which Natural Rights are to be exercised.
OBJECTIVE
AND PASSIVE RIGHTS…
There are times
when the terminology developed long ago (by Catholic Moral Philosophers) to
deal with the concept of Rights seems rather arbitrary. The term “objective and passive” Rights is
an example of one of them. These have
to do with the “terms” of the relationships that are associated with various
kinds of Rights. The “terms” being, of
course, the individuals standing in the “relationship” in question. Thus we can speak of pure and simple
Rights and after a fashion Rights.
(The Latin terms, respectively, are “simpliciter dictum” and “secundum
quid”) Rights in the purest
and most proper sense exist only between “equals”. When the parties to a
relationship are not “equals” (as human beings) in the fullest sense of the
term, we speak of Rights “after a fashion”, or quasi-Rights. The former kind exists only between
“citizens” (as citizens) within a society or commonwealth. The latter with individuals related
in some other way. With regard to these
latter, we speak of paternal and filial Rights, Rights of dominion, and
of domestic Rights. In these
three kinds of rights, there is not a “strict” equality, because, in some way, each
term of the relationship “belongs” to the other.
I mention the
Rights of “dominion” which have to do with the relationship between “master and
servant (slave)”, because historically that kind of relationship was an
important one. (The Latin word servus
means both slave and servant, but its primary meaning is slave). Historically, slaves were “members” of a
household, and the “householder” was therefore obliged to provide for his
“slaves” in pretty much the same way that the householder provided for his very
own offspring. When we consider that
the Latin word for “householder” is paterfamilias (fatherfamilies) it is
not surprising to note that when the householder (in the Gospel episode) sent
to Jesus to ask Him to cure his servant (slave), he spoke of the servant [in
the Latin Vulgate text] as “puer meus” (“my child”). (The Latin puer means “boy”, or male child). Nowadays, of course, although civil law
still speaks of the relationship between “employer and employee” in terms of
“master and servant”, the two are considered to be “equals” as citizens, and
who, by a “mutual private agreement” (that the law enforces), create the
relationship “employer and employee” and the attendant Rights that arise
out of the relationship.
The distinction
between Rights pure and simple and quasi-Rights is
reflected in the fact that we have traditionally spoken of “restitution” being
required when “Rights” binding upon “citizens” (equals as human beings in
society) have been violated, but we do not speak of “restitution” when certain
parental and filial or interspousal “Rights” have been violated. The “purpose”
of restitution is to “make whole” or to “repair the damage done to” the person
whose rights have been violated. A
“husband and father” who has not provided proper material support for his wife
and children is NOT bound by the “concept” of restitution. The reason being, of course, that the
neglected family member is considered “a part of” the husband-father, and the
concept of restitution does not apply to oneself”. However, obligation to provide needed support remains permanently
binding. Similarly, the children of
needy, elderly parents who do not provide them with some measure of help and
support are not bound by the law of “restitution”, though the obligation to
help them in their need remains permanently in force. (As an interesting aside: nowadays, once the family unit has been
dissolved by divorce, or when the father and mother of children were never
married, our civil law does require the father of children to make
“restitution” (pay arrearages) in regard to “child support”).
Nevertheless, a
parent, a child or a spouse who slanders or otherwise injures the
“reputation” of his/her child, parent or spouse, respectively, is bound
by the law of restitution, because the “right” to a good name is based upon
their “equal status” as human beings, and is independent of the parental or
spousal relationship.
On the other
hand, when a parent, child or spouse “steals” resources from a child, parent or
spouse respectively, not “earmarked” for his/her lawful support and
maintenance, justice requires that he/she make restitution.
And were a
parent, child, or spouse to insult or strike his or her child, parent or
spouse, respectively, that would be a sin against both justice and piety. Against “justice” because the “right” to be
“inviolate” in reputation and in one’s person depends, as we said above, upon
their “equal status” as human beings.
Against “piety” because “kinship” imposes a special obligation to love,
revere and protect the other individuals who share that “kinship”. (In the event you are wondering why the word
“piety” is used in this context – later in the course of these conferences we
will consider Piety as a virtue related to Justice – it is because what we
nowadays in English call patriotism to the Romans of classical times
called PIETAS: that is, LOYALTY to your
very own family and nation.
“Pure and
simple Rights” are further subdivided into the categories of “strict” and “not
strict”. A strict right is so clearly
“determined” as to what “goods” or “services” are owed, that the right to them
will be enforced by the proper authorities.
That is not the case with “not strict” rights. For example, whoever buys a well specified plot of land has the Strict
Right to take possession of it, occupy it, and use it as he/she sees fit
(subject to restrictions imposed by proper authorities for the sake of the
common good). The strict right to prohibit
trespassing goes along with it.
When the
“goods” in question or the “services” (or other conduct) owed ARE NOT clearly
specified, then the “right” is NOT a “strict” one, since proper authorities are
unable to enforce what is vague or uncertain.
One example
would be “the right” of a particular person, who is indigent, to receive an
award from the estate of a “testator” whose will, in only a “general way”,
instructs the “executor” to donate a substantial sum of money “to the
poor”. Or better: a Foundation has been established to fund
the education of “bright, indigent, minority students”. All who belong to that specific category
would have a strict right “to apply”, but NOT a strict right “to
receive funds”.
SUBJECTIVE
AND ACTIVE RIGHTS…
Considered as
“faculties” or “powers”, Rights are
divided into Rights over a thing and Rights to a thing. The former has to do with things or objects
or “entities” already in one’s possession. This includes the Right or “lawful power” to do whatever one
wishes to do with or to the entity in his/her possession, as well as the power
to “vindicate” that right of so disposing, should another person try to interfere.
The latter,
Rights TO something, confer the power to “obtain possession of”
that entity, including the power to enlist the aid of proper authorities to
cause the person or organization that actually possess the thing in question to
surrender it to the individual who has the “Right TO it”. Stated simply, the Right TO something is the
faculty or “power” to do what is necessary [and lawful] to obtain Rights OVER
that something.
To have a Right
OVER something, three conditions must be met:
1. That
the thing, or entity, actually exists.
There is no such thing as a right over a non-entity.
2. That
there exists some lawful bond “joining” the entity to a specific, individual
person, as a result of which the thing “belongs” to that individual. And
3. That
the thing actually be in his/her possession.
To have a
“Right TO something”, only one condition is required, it is the second of the
three enumerated above, namely, the individual claiming the Right must be
“invested” with some lawful entitlement thereto. Why don’t we say that the 1st
requirement must also be met? Because
there are circumstances where the “something” has been unlawfully destroyed or
dissipated by another person or organization, who would be bound to replace
that something with its equivalent.
The Right
OVER something is also called “the dominion of ownership”. There is another kind of dominion
called the “dominion of jurisdiction”.
This latter IS the Right to govern others but it IS NOT a Right
OVER others, because the Right to govern cannot and should not be
used for one’s personal benefit, but for the common good of “all the
subjects”, even to the extent of disposing of the “goods” of the subjects, provided
the common good REQUIRES it, and then ONLY to the extent required.
Dominion of ownership
is divided into Full Dominion and Semi-dominion.
Full dominion
of Ownership is defined as (1) the strict right (2) of perfectly disposing (3)
of something (4) as one’s very own (5) to one’s own personal benefit (6) in
whatever way not prohibited by law.
(1) A
Right OVER something, as stated above.
(2) The
power to do whatever one wants with it:
sell it, lend it, lease it out, give it away, exchange it for something
else, reaping its fruits or its earnings, enjoying what it can do or provide,
making use of it as a tool or an instrument, etc. even the power to
destroy it.
(3) Some
“entity” whether corporeal: a field, a house, an object; or incorporeal:
a Right TO, (legally, a CHOSEN action), a business, a privilege, a lien, an
easement, a mortgage, and anything from which some stipend or benefit can be
derived.
(4) Excluding
others, holding in one’s own name and authority, as distinguished from having
in one’s name and control, but without “true” ownership.
(5) Really,
subject to one’s utterly free good pleasure, even if that includes giving it
away or destroying it.
(6) Whether
by Divine law, Natural law, civil law, Canon law. And provided the use is not against some “virtue”.
With regard to
(6), the dominion is still said to remain “full” even though the “exercise” of
the dominion is restricted in some way.
The only restriction being “provided the Rights of another are
not violated.” It is the proper
authorities who decide when and to what extent the “exercise” of full dominion
injures the Rights of others or injures the Common Good.
Semi-dominion
of ownership is that which has some of the elements (1) to (6), but not
all. More specifically, full dominion
includes both disposing of and enjoying. Semi-dominion would include one or the
other, but NOT both.
Nowadays we are
familiar with the notions “trustee” and “beneficiary”. A trustee has the legal title to some
thing or property, but IS NOT entitled to any benefits DERIVING from it. The beneficiary does not have legal title to
that same thing or property, but IS entitled to the benefits deriving from
it. Thus, the trustee would have ONLY
the right to dispose of the property, while the beneficiary would have
ONLY the right of enjoying it.
However, the trustee is obliged to dispose of the property in such a way
that its value or usefulness is not diminished and that the interests of the
beneficiary are not harmed.
Other
interrelated examples of “semi-dominion” would be those of “lessor” and
“lessee”. As is quite obvious, these
“kinds” of rights are created by mutual agreement, and are among those that
civil authority will enforce. The
lessor would still retain the Right to dispose of the property to some extent,
but he would have “sold” his right to occupy (or possess), use and enjoy the
thing or property. The “agreement”
creating the relationship and its attendant “rights” would specify how the sum
total of all the “rights” included in “full-dominion of ownership” are to be
divided.
We can think of
Full dominion of ownership as consisting of a complete bundle of “Rights. The agreement would create two well-defined
“bundles” out of the complete one, and specify which bundle goes to each of the
parties to the agreement. Then each of
the parties to the agreement would have “semi-dominion” over the entity or
property in question.
It can happen,
though, that circumstances other than agreements freely entered into can create
rights in some thing or property. Examples of these would be “liens” or “easements”, which were
mentioned above among incorporeal entities. In the case of a lien, the “full dominion” of the owner would be
diminished in the sense that when the property is sold, a portion of the
proceeds must be given to the lien holder. In the case of an easement, full-dominion of ownership is
“restricted” in the sense that the owner cannot deny beneficiaries of the
easement access to or entry upon land for a certain, well-defined purpose.
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Before going on
to the next “question”, let me take a moment to say that from all that has been
said above, we must draw the conclusion that God has told us that NO HUMAN
BEING has full dominion of ownership over his/her body. If that were the case, one would be able to
“destroy” oneself. We know that God has
“forbidden” that in the 5th commandment, which we have said is a
precept of the Natural Law. All of us,
then, are the “trustees” of our bodies, and it is God Himself who is the
beneficiary, and united with Him as beneficiaries, are all other human beings,
particularly those most in need of basic necessities, whether of a material or
non-material kind.
Therefore, we
DO have the Right to CONTROL our bodies, but along with it we also have the OBLIGATION
to control them as the Lord God Himself has specified in Divine
revelation. The basic minimum that God
(in virtue of how He created us) demands of us in the use of our bodies and
their faculties is specified in the Ten Commandments. That is enough to keep us from “killing” our souls, and so enable
us (after a period of purgation) to “get to Heaven” (read: remain united to Him
in love). But if we want to make use of
our bodies and faculties in a way that brings the maximum return to God
and those beneficiaries identified with Him, then we have to Love one
another AS Christ has loved us.
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Next we will
treat of: The Object of Rights and of
Dominion.
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