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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 38

 

Commutative Justice

 

With this conference we begin the Third Part of the Treatise on Justice, which has to do with COMMUTATIVE JUSTICE.  This part is quite lengthy, and is divided into three sections, which are entitled respectively: 

 

A.     The PROPER act of Commutative Justice, or, Restitution;

B.     Justice and Injustice (Injury) in Involuntary Exchanges; and

C.     Justice and injustice (Injury) in Voluntary exchanges, or, Contracts

 

Looking over the entire Outline of this Third Part in the Index of my textbook, I foresee that we will be spending a lot of time getting through it.  It may take all of 1994 to accomplish that, unless, of course, I lengthen the conferences beyond two pages (four sides), which I am loath to do, or unless I finally succeed in utilizing my printer to give me 15 letters per inch.  So that you will know what is ahead and that I am not kidding about the length of this Third Part of the Treatise, here is the Outline ONLY of Section A:

 

      First Question – The Necessity of Restitution

      Second Question – The “Roots” of Restitution

          Art. I.  Unjust Receiving (or Taking).

          Art II.  Custody of the Thing Received or Taken

          Art. III. Unjust Receiving (or Taking and Custody thereof considered together

         Art. IV. Unjust Cooperation

 

      Third Question – The Circumstances of Restitution

         Art. I.  To Whom Restitution is Made

         Art. II The Order in Making Restitution

         Art. III.  The Manner of making Restitution

     

      Fourth Question – Causes which excuse from Restitution

         Art. I.  Causes which excuse temporarily from Restitution

         Art. II. Causes which excuse entirely from Restitution

 

Section A

 

Commutative Justice has to do with those “exchanges” whereby DUE EQUALITY is established and preserved between individuals.  The “exchanges” are those deeds or acts by means of which “something” is transferred from one individual to another.  As indicated above, some exchanges are involuntary and some are Voluntary.  That is why the treatise is divided into THREE sections.  We begin with a detailed consideration of

 

Restitution, the PROPER act of Commutative Justice

 

The etymology of the word Restitution (Latin:  Restitutere) comes from the idea of “To Establish Again”  (Latin:  Iterum Statuere), and conveys the notion of restoring a person or thing “to its original state”.  In the broad and improper sense, Restitution means to give to another what is “owed” in justice, or to pay a just debt.  In the strict sense, the meaning proper to moral theology, Restitution means to return to the possession or custody of another something that BELONGS to him. The “things” in question are CHIEFLY “objects that remain the same or intact”, and which can pass from the possession or physical custody of their rightful owners may not remain unchanged or intact, and thus cannot be restored in their original state, in the DERIVATIVE sense, the meaning of Restitution includes “compensation” for the damaged or altered state of the object separated from its owner.  Furthermore, the idea of a “thing” is extended to include both the PHYSICAL integrity and the PSYCHOLOGICAL or PSYCHIC integrity of an individual, both of which can be “damaged”, i.e., taken away by the deeds of another.  Interestingly, the “damage” to one’s psyche may exist only in the minds of OTHER individuals, as a result of defamation (diminishment of honor due) by word or deed of the defamer.

 

Having said all that, we can now “define” Restitution:  It is that act of Commutative Justice by means of which the exact equal of a thing is restored to an individual from whom the thing in question was either separated against his will or by whom it was voluntarily surrendered.

 

Breaking that down and commenting on it, we have

 

1.       An Act of Commutative Justice.  The obligation to make restitution arises only in connection with relationships between individuals considered as “equals”, and only when there exists the possibility that the “entitlement” in one of the two parties to the relationship can be FULLY SATISFIED by the other party, in whom there resides a “corresponding obligation” to honor that entitlement.  In, matters that fall within the province of other virtues, one or the other, or both, of the elements just noted is lacking, i.e., the parties do not stand on an equal footing in the relationship (Charity, Religion, Obedience, Legal Justice, Distributive Justice) or it is not possible fully to satisfy the “corresponding obligation” (Religion).

 

2.       By Which Something is Restored to Another.  The “thing” separated from its owner must be restored by the one holding it or having damaged it.  This differs from “repossession” and from “taking just compensation” on the part of the owner of the thing in question.  However, when this is done, because the “owing party” is delinquent, the obligation to restore in the latter is quenched.

 

3.       The “Exact Equal” is Restored.  As we had occasion to state in an earlier conference, the notion of “equality” is intimately and essentially related to the notion of “justice”.

 

4.       To the Individual from Whom the Thing Was Taken against His Will, or Whom it Was Voluntarily Surrendered.  Ordinarily, the obligation to make restitution arises in situations where the thing in question is taken or damaged or altered “against” the will of the owner, or when the thing is voluntarily surrendered “for a time” by the owner, in “lending” a useful object or money, which are to be returned after a stated interval.  Ordinarily, therefore, in matters that fall within the province of commutative justice, one of the parties to the relationship can be called the “creditor” and the other the “debtor”.  However, the obligation to make restitution can arise when someone, whether knowingly or unknowingly, comes into the possession of something that has been separated from an unwilling owner.

 

When we say that Restitution is the PROPER Act of the virtue of Commutative Justice, we mean that ONLY by means of restitution can this virtue be exercised in its fullest, most perfect sense.  (When we spoke of the Virtue of Fortitude, we noted that it could be fully and most perfectly exercised ONLY by undergoing Martyrdom, the PROPER act of that virtue).  That is because Restitution is the only kind of “exchange” which admits of a “measurable” exactitude.

 

Restitution and Confession

 

We all remember that when we were children and were being instructed on how to make a good confession, somewhere along the line we were told that if we wished to be forgiven for a sin of theft, we would have to make “restitution”, i.e. return the stolen object or its equivalent.  If it turned out that we confessed the theft without having first made restitution we had to “promise” the confessor that we would do so before he would give us absolution.  This clearly reveals the distinction between the “guilt” of the sin of theft and the “obligation in justice” arising out of the sin of theft.  The absolution of the priest takes away the “guilt” but does not take away the obligation in justice to make restitution.  But what if one does not fulfill the promise to make restitution after leaving the confessional?  Does the “guilt” of the sin of theft revive?  No, once forgiven, guilt for a specific sin never revives.  However, the one capable of doing so and having opportunities to do so but does not make restitution within a reasonable time does commit a sin of “infidelity”, that is, of breaking one’s promise, as well as a sin against the virtue of Religion, since the promise is made indirectly to God through the person of His representative in the confessional.

 

Restitution and a “Mere Payment”

 

Merely paying off a debt is not always the same as making Restitution.  One reason is because “debts” can arise in various ways.  One may make a voluntary pledge in a campaign to raise funds for Charity, or one may make a vow to make a charitable donation in thanksgiving for a favor of an “entitlement” that exists in another.

 

Another way of contracting a debt is by making a purchase.  Even in those instances where the purchase is made “on credit”, the obligation to make restitution in the strict sense may not arise.  That is because the “entitlement” to the money does not arise out of the “true value” or the goods voluntarily surrendered to the buyer, but RATHER out of an agreement reached as to the selling price.  Restitution (commutative justice) always has to do with “strict equality” in the exchange.

 

Restitution and “Satisfaction”

 

Neither are Restitution and Satisfaction identical.  In common parlance we do speak of “satisfying” obligations of all kinds, regardless of their origin.  In traditional Catholic Moral Theology, however, the term Satisfaction is of a genre that is altogether different from that of Restitution.  In this latter sense, satisfaction is directed to the individual person who is “satisfied”.  Restitution always has to do with the “object” restored or its “equivalent objective value”.  At times only “restitution” can “satisfy” (bring contentment) to the one holding the entitlement.  At other times the one receiving restitution can be satisfied or be contented with substantially less than what is owed, in which case the remainder of the debt is “forgiven”.  In those instances where the obligation “to restore” to the original state concerns damage done to another’s honor or good name, where measurable exactitude is impossible, it is more proper to speak of “reparation” rather than restitution.  Thus we speak of “reparation” or “making satisfaction” for our sins, even though we can never, being finite beings, ever adequately “repair” the injury our sins do to God’s Infinite Goodness and Majesty.  (Thank You, Most Holy Trinity, and thank You, Mary, for giving us Jesus)

 

First Question – The Necessity of Restitution

 

What was said above about Restitution and Confession will now be dealt with more explicitly:

 

      Thesis:  Restitution is necessary for salvation.  By necessity of a precept, one is under a grave obligation (considered in the abstract) to make restitution to another to whom it is owed in strict justice.  The restitution can be actual, or by a vow (Latin:  votum) to do so later. 

 

1.       In actual Fact or by Vow.  In actual fact:  when that is morally possible.  By vow:  when, for the time being, it is NOT morally possible to make restitution, then the firm, good faith intention (vow) to make restitution suffices.

 

2.       Considered in the Abstract (Latin:  per se).  The Precept or Commandment to avoid harming one’s neighbor in his property (Thou shalt not steal, thou shalt not covet thy neighbor’s goods), considered in itself, without reference to what is taken or what is damaged, is a very serious one.  Considered in the concrete (Latin:  per accidens) the property taken may be of trivial value, or the damage done may be very slight.  Accordingly, the obligation to make restitution could be slight or serious, or anywhere in between.

 

3.       By Necessity of Precept.  The “mere” act of returning an object or its equivalent value to its rightful owner is “neutral” in itself, and takes its moral value from the fact that “God wills” that restitution be made.  This is to distinguish “neutral” acts from acts that are either “intrinsically good” or “intrinsically evil”, that is, apart from “divine positive law”.

 

4.       For Salvation.  One way of giving content to the word “Salvation” is to think of it as “getting to Heaven”.  This requires that “on our journey” (or pilgrimage) through this life we strive constantly to keep our wills united with God’s Will.  We may have united our wills to God in many, many ways by our conduct, but if there is one perduring situation in our lives wherein our will IS NOT united to the Will of God, then our “salvation” is in jeopardy.  Thus, when the [grave] obligation to make restitution arises, we MUST do so in order to be saved.

 

What we said about restitution and confession also applies here.  We cannot be saved unless our “sins” (violations of God’s Will for us) are forgiven.  Forgiveness requires [at least imperfect] “contrition”.  But one cannot be said to be “truly sorry” for having committed a theft or for having unlawfully damaged another in his property WITHOUT the sincere, good faith intention to make restitution.  Thus, restitution is necessary for salvation.

 

As already indicated, the obligation to make restitution is derived from the explicit commandment:  Thou shalt not steal.  Implicit in this commandment is the positive precept:  Thou shalt return to its rightful owner what does not belong to you.  But when we look at other explicit commands of Scripture that deal specifically with restitution, it seems that God is demanding more than “equality” in what is to be given back: 

 

      “If one of you steals an ox or a sheep, and kills it, or sells it, he shall return five oxen for one, and four sheep for one.” (Exodus 21:37.

 

      “Full restitution must be made; if [the thief] has not the means, he must be sold to pay for what he has stolen.  If the stolen animal is found alive in his possession, ox or donkey or sheep, he must pay double.”  Exodus 22:3,4a.

 

How do we explain the fact that the Old Law exacted more to be returned than what was taken?  Because the “extra” was added as “punishment” for the crime.  Human authors of positive Law customarily attach sanctions (punishments) to the individual provisions of the criminal code, taking a hint, surely, from God Himself.  The purpose of punishment is to “repair” the harm (disorder) inflicted upon society as a whole by a crime.  The harm exists, even when the crime is done in secret, because the disorder is caused by the “mere existence” of a guilty (disordered) conscience.  One final quote:

 

      “If, however, I say to a wicked man:  You are to die, and he renounces his sins and does what is lawful and right, if he returns pledges, restores what he has stolen, keeps the laws that give life and stops committing sin – he shall live, and will not die.”  Ezekiel 33:14,15.

 

 

 

 

 

 

 

                       

 

 

 

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MISSION STATEMENT: This web site was created for the purpose of completing the work of Fr. Bruno Cocuzzi, O.C.D These conferences may be reproduced for private use only. Publication of this material is forbidden without permission of the Father Provincial for the Discalced Carmelites, Holy Hill, 1525 Carmel Rd., Hubertus, WI 53033-9770.