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Question: 61 [<< | >>]
We must now consider the parts of justice; (1) the subjective parts,
which are the species of justice, i.e. distributive and commutative
justice; (2) the quasi-integral parts; (3) the quasi-potential parts,
i.e. the virtues connected with justice. The first consideration will be
twofold: (1) The parts of justice; (2) their opposite vices. And since
restitution would seem to be an act of commutative justice, we must
consider (1) the distinction between commutative and distributive
justice; (2) restitution.
Under the first head there are four points of inquiry:
(1) Whether there are two species of justice, viz. distributive and
commutative?
(2) Whether in either case the mean is take in the same way?
(3) Whether their matter is uniform or manifold?
(4) Whether in any of these species the just is the same as
counter-passion?
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Question: 61 [<< | >>]
Article: 1 [<< | >>]
Objection 1: It would seem that the two species of justice are unsuitably
assigned, viz. distributive and commutative. That which is hurtful to the
many cannot be a species of justice, since justice is directed to the
common good. Now it is hurtful to the common good of the many, if the
goods of the community are distributed among many, both because the goods
of the community would be exhausted, and because the morals of men would
be corrupted. For Tully says (De Offic. ii, 15): "He who receives becomes
worse, and the more ready to expect that he will receive again."
Therefore distribution does not belong to any species of justice.
Objection 2: Further, the act of justice is to render to each one what is his
own, as stated above (Question [58], Article [2]). But when things are distributed, a
man does not receive what was his, but becomes possessed of something
which belonged to the community. Therefore this does not pertain to
justice.
Objection 3: Further, justice is not only in the sovereign, but also in the
subject, as stated above (Question [58], Article [6]). But it belongs exclusively to the
sovereign to distribute. Therefore distribution does not always belong to
justice.
Objection 4: Further, "Distributive justice regards common goods" (Ethic. v, 4). Now matters regarding the community pertain to legal justice. Therefore distributive justice is a part, not of particular, but of legal justice.
Objection 5: Further, unity or multitude do not change the species of a
virtue. Now commutative justice consists in rendering something to one
person, while distributive justice consists in giving something to many.
Therefore they are not different species of justice.
On the contrary, The Philosopher assigns two parts to justice and says
(Ethic. v, 2) that "one directs distributions, the other, commutations."
I answer that, As stated above (Question [58], Articles [7],8), particular justice is
directed to the private individual, who is compared to the community as a
part to the whole. Now a twofold order may be considered in relation to a
part. In the first place there is the order of one part to another, to
which corresponds the order of one private individual to another. This
order is directed by commutative justice, which is concerned about the
mutual dealings between two persons. In the second place there is the
order of the whole towards the parts, to which corresponds the order of
that which belongs to the community in relation to each single person.
This order is directed by distributive justice, which distributes common
goods proportionately. Hence there are two species of justice,
distributive and commutative.
Reply to Objection 1: Just as a private individual is praised for moderation in
his bounty, and blamed for excess therein, so too ought moderation to be
observed in the distribution of common goods, wherein distributive
justice directs.
Reply to Objection 2: Even as part and whole are somewhat the same, so too that
which pertains to the whole, pertains somewhat to the part also: so that
when the goods of the community are distributed among a number of
individuals each one receives that which, in a way, is his own.
Reply to Objection 3: The act of distributing the goods of the community, belongs
to none but those who exercise authority over those goods; and yet
distributive justice is also in the subjects to whom those goods are
distributed in so far as they are contented by a just distribution.
Moreover distribution of common goods is sometimes made not to the state
but to the members of a family, and such distribution can be made by
authority of a private individual.
Reply to Objection 4: Movement takes its species from the term "whereunto." Hence
it belongs to legal justice to direct to the common good those matters
which concern private individuals: whereas on the contrary it belongs to
particular justice to direct the common good to particular individuals by
way of distribution.
Reply to Objection 5: Distributive and commutative justice differ not only in respect of unity and multitude, but also in respect of different kinds of due: because common property is due to an individual in one way, and his personal property in another way.
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Question: 61 [<< | >>]
Article: 2 [<< | >>]
Objection 1: It would seem that the mean in distributive justice is to be
observed in the same way as in commutative justice. For each of these is
a kind of particular justice, as stated above (Article [1]). Now the mean is
taken in the same way in all the parts of temperance or fortitude.
Therefore the mean should also be observed in the same way in both
distributive and commutative justice.
Objection 2: Further, the form of a moral virtue consists in observing the
mean which is determined in accordance with reason. Since, then, one
virtue has one form, it seems that the mean for both should be the same.
Objection 3: Further, in order to observe the mean in distributive justice we
have to consider the various deserts of persons. Now a person's deserts
are considered also in commutative justice, for instance, in punishments;
thus a man who strikes a prince is punished more than one who strikes a
private individual. Therefore the mean is observed in the same way in
both kinds of justice.
On the contrary, The Philosopher says (Ethic. v, 3,4) that the mean in
distributive justice is observed according to "geometrical proportion,"
whereas in commutative justice it follows "arithmetical proportion."
I answer that, As stated above (Article [1]), in distributive justice something
is given to a private individual, in so far as what belongs to the whole
is due to the part, and in a quantity that is proportionate to the
importance of the position of that part in respect of the whole.
Consequently in distributive justice a person receives all the more of
the common goods, according as he holds a more prominent position in the
community. This prominence in an aristocratic community is gauged
according to virtue, in an oligarchy according to wealth, in a democracy
according to liberty, and in various ways according to various forms of
community. Hence in distributive justice the mean is observed, not
according to equality between thing and thing, but according to
proportion between things and persons: in such a way that even as one
person surpasses another, so that which is given to one person surpasses
that which is allotted to another. Hence the Philosopher says (Ethic. v,
3,4) that the mean in the latter case follows "geometrical proportion,"
wherein equality depends not on quantity but on proportion. For example
we say that 6 is to 4 as 3 is to 2, because in either case the proportion
equals 1-1/2; since the greater number is the sum of the lesser plus its
half: whereas the equality of excess is not one of quantity, because 6
exceeds 4 by 2, while 3 exceeds 2 by 1.
On the other hand in commutations something is paid to an individual on
account of something of his that has been received, as may be seen
chiefly in selling and buying, where the notion of commutation is found
primarily. Hence it is necessary to equalize thing with thing, so that
the one person should pay back to the other just so much as he has become
richer out of that which belonged to the other. The result of this will
be equality according to the "arithmetical mean" which is gauged
according to equal excess in quantity. Thus 5 is the mean between 6 and
4, since it exceeds the latter and is exceeded by the former, by 1.
Accordingly if, at the start, both persons have 5, and one of them
receives 1 out of the other's belongings, the one that is the receiver,
will have 6, and the other will be left with 4: and so there will be
justice if both be brought back to the mean, 1 being taken from him that
has 6, and given to him that has 4, for then both will have 5 which is
the mean.
Reply to Objection 1: In the other moral virtues the rational, not the real mean,
is to be followed: but justice follows the real mean; wherefore the mean,
in justice, depends on the diversity of things.
Reply to Objection 2: Equality is the general form of justice, wherein
distributive and commutative justice agree: but in one we find equality
of geometrical proportion, whereas in the other we find equality of
arithmetical proportion.
Reply to Objection 3: In actions and passions a person's station affects the
quantity of a thing: for it is a greater injury to strike a prince than a
private person. Hence in distributive justice a person's station is
considered in itself, whereas in commutative justice it is considered in
so far as it causes a diversity of things.
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Question: 61 [<< | >>]
Article: 3 [<< | >>]
Objection 1: It would seem that there is not a different matter for both kinds
of justice. Diversity of matter causes diversity of virtue, as in the
case of fortitude and temperance. Therefore, if distributive and
commutative justice have different matters, it would seem that they are
not comprised under the same virtue, viz. justice.
Objection 2: Further, the distribution that has to do with distributive
justice is one of "wealth or of honors, or of whatever can be distributed
among the members of the community" (Ethic. v, 2), which very things are
the subject matter of commutations between one person and another, and
this belongs to commutative justice. Therefore the matters of
distributive and commutative justice are not distinct.
Objection 3: Further, if the matter of distributive justice differs from that
of commutative justice, for the reason that they differ specifically,
where there is no specific difference, there ought to be no diversity of
matter. Now the Philosopher (Ethic. v, 2) reckons commutative justice as
one species, and yet this has many kinds of matter. Therefore the matter
of these species of justice is, seemingly, not of many kinds.
On the contrary, It is stated in Ethic. v, 2 that "one kind of justice
directs distributions, and another commutations."
I answer that, As stated above (Question [51], Articles [8],10), justice is about
certain external operations, namely distribution and commutation. These
consist in the use of certain externals, whether things, persons or even
works: of things, as when one man takes from or restores to another that
which is his; of persons, as when a man does an injury to the very person
of another, for instance by striking or insulting him, or even by showing
respect for him; and of works, as when a man justly exacts a work of
another, or does a work for him. Accordingly, if we take for the matter
of each kind of justice the things themselves of which the operations are
the use, the matter of distributive and commutative justice is the same,
since things can be distributed out of the common property to
individuals, and be the subject of commutation between one person and
another; and again there is a certain distribution and payment of
laborious works.
If, however, we take for the matter of both kinds of justice the
principal actions themselves, whereby we make use of persons, things, and
works, there is then a difference of matter between them. For
distributive justice directs distributions, while commutative justice
directs commutations that can take place between two persons. of these
some are involuntary, some voluntary. They are involuntary when anyone
uses another man's chattel, person, or work against his will, and this
may be done secretly by fraud, or openly by violence. In either case the
offence may be committed against the other man's chattel or person, or
against a person connected with him. If the offence is against his
chattel and this be taken secretly, it is called "theft," if openly, it
is called "robbery." If it be against another man's person, it may affect
either the very substance of his person, or his dignity. If it be against
the substance of his person, a man is injured secretly if he is
treacherously slain, struck or poisoned, and openly, if he is publicly
slain, imprisoned, struck or maimed. If it be against his personal
dignity, a man is injured secretly by false witness, detractions and so
forth, whereby he is deprived of his good name, and openly, by being
accused in a court of law, or by public insult. If it be against a
personal connection, a man is injured in the person of his wife, secretly
(for the most part) by adultery, in the person of his slave, if the
latter be induced to leave his master: which things can also be done
openly. The same applies to other personal connections, and whatever
injury may be committed against the principal, may be committed against
them also. Adultery, however, and inducing a slave to leave his master
are properly injuries against the person; yet the latter, since a slave
is his master's chattel, is referred to theft. Voluntary commutations are
when a man voluntarily transfers his chattel to another person. And if he
transfer it simply so that the recipient incurs no debt, as in the case
of gifts, it is an act, not of justice but of liberality. A voluntary
transfer belongs to justice in so far as it includes the notion of debt,
and this may occur in many ways. First when one man simply transfers his
thing to another in exchange for another thing, as happens in selling and
buying. Secondly when a man transfers his thing to another, that the
latter may have the use of it with the obligation of returning it to its
owner. If he grant the use of a thing gratuitously, it is called
"usufruct" in things that bear fruit; and simply "borrowing" on "loan" in
things that bear no fruit, such as money, pottery, etc.; but if not even
the use is granted gratis, it is called "letting" or "hiring." Thirdly, a
man transfers his thing with the intention of recovering it, not for the
purpose of its use, but that it may be kept safe, as in a "deposit," or
under some obligation, as when a man pledges his property, or when one
man stands security for another. In all these actions, whether voluntary
or involuntary, the mean is taken in the same way according to the
equality of repayment. Hence all these actions belong to the one same
species of justice, namely commutative justice. And this suffices for the
Replies to the Objections.
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Question: 61 [<< | >>]
Article: 4 [<< | >>]
Objection 1: It would seem that the just is absolutely the same as
retaliation. For the judgment of God is absolutely just. Now the judgment
of God is such that a man has to suffer in proportion with his deeds,
according to Mt. 7:2: "With what measure you judge, you shall be judged:
and with what measure you mete, it shall be measured to you again."
Therefore the just is absolutely the same as retaliation.
Objection 2: Further, in either kind of justice something is given to someone
according to a kind of equality. In distributive justice this equality
regards personal dignity, which would seem to depend chiefly on what a
person has done for the good of the community; while in commutative
justice it regards the thing in which a person has suffered loss. Now in
respect of either equality there is retaliation in respect of the deed
committed. Therefore it would seem that the just is absolutely the same
as retaliation.
Objection 3: Further, the chief argument against retaliation is based on the
difference between the voluntary and the involuntary; for he who does an
injury involuntarily is less severely punished. Now voluntary and
involuntary taken in relation to ourselves, do not diversify the mean of
justice since this is the real mean and does not depend on us. Therefore
it would seem that the just is absolutely the same as retaliation.
On the contrary, The Philosopher proves (Ethic. v, 5) that the just is
not always the same as retaliation.
I answer that, Retaliation [contrapassum] denotes equal passion repaid
for previous action; and the expression applies most properly to
injurious passions and actions, whereby a man harms the person of his
neighbor; for instance if a man strike, that he be struck back. This
kind of just is laid down in the Law (@Ex. 21:23,24): "He shall render
life for life, eye for eye," etc. And since also to take away what
belongs to another is to do an unjust thing, it follows that secondly
retaliation consists in this also, that whosoever causes loss to another,
should suffer loss in his belongings. This just loss is also found in the
Law (@Ex. 22:1): "If any man steal an ox or a sheep, and kill or sell it,
he shall restore five oxen for one ox and four sheep for one sheep."
Thirdly retaliation is transferred to voluntary commutations, where
action and passion are on both sides, although voluntariness detracts
from the nature of passion, as stated above (Question [59], Article [3]).
In all these cases, however, repayment must be made on a basis of
equality according to the requirements of commutative justice, namely
that the meed of passion be equal to the action. Now there would not
always be equality if passion were in the same species as the action.
Because, in the first place, when a person injures the person of one who
is greater, the action surpasses any passion of the same species that he
might undergo, wherefore he that strikes a prince, is not only struck
back, but is much more severely punished. In like manner when a man
despoils another of his property against the latter's will, the action
surpasses the passion if he be merely deprived of that thing, because the
man who caused another's loss, himself would lose nothing, and so he is
punished by making restitution several times over, because not only did
he injure a private individual, but also the common weal, the security of
whose protection he has infringed. Nor again would there be equality of
passion in voluntary commutations, were one always to exchange one's
chattel for another man's, because it might happen that the other man's
chattel is much greater than our own: so that it becomes necessary to
equalize passion and action in commutations according to a certain
proportionate commensuration, for which purpose money was invented. Hence
retaliation is in accordance with commutative justice: but there is no
place for it in distributive justice, because in distributive justice we
do not consider the equality between thing and thing or between passion
and action (whence the expression 'contrapassum'), but according to
proportion between things and persons, as stated above (Article [2]).
Reply to Objection 1: This form of the Divine judgment is in accordance with the
conditions of commutative justice, in so far as rewards are apportioned
to merits, and punishments to sins.
Reply to Objection 2: When a man who has served the community is paid for his
services, this is to be referred to commutative, not distributive,
justice. Because distributive justice considers the equality, not between
the thing received and the thing done, but between the thing received by
one person and the thing received by another according to the respective
conditions of those persons.
Reply to Objection 3: When the injurious action is voluntary, the injury is aggravated and consequently is considered as a greater thing. Hence it requires a greater punishment in repayment, by reason of a difference, not on part, but on the part of the thing.