Summa Theologica Part III (Secunda Secundae) Part 99

FIFTH ARTICLE [II-II, Q. 60, Art. 5]

Whether We Should Always Judge According to the Written Law?

Objection 1: It would seem that we ought not always to judge according to the written law. For we ought always to avoid judging unjustly. But written laws sometimes contain injustice, according to Isa. 10:1, "Woe to them that make wicked laws, and when they write, write injustice." Therefore we ought not always to judge according to the written law.

Obj. 2: Further, judgment has to be formed about individual happenings. But no written law can cover each and every individual happening, as the Philosopher declares (Ethic. v, 10). Therefore it seems that we are not always bound to judge according to the written law.

Obj. 3: Further, a law is written in order that the lawgiver's intention may be made clear. But it happens sometimes that even if the lawgiver himself were present he would judge otherwise. Therefore we ought not always to judge according to the written law.

_On the contrary,_ Augustine says (De Vera Relig. x.x.xi): "In these earthly laws, though men judge about them when they are making them, when once they are established and pa.s.sed, the judges may judge no longer of them, but according to them."

_I answer that,_ As stated above (A. 1), judgment is nothing else but a decision or determination of what is just. Now a thing becomes just in two ways: first by the very nature of the case, and this is called "natural right," secondly by some agreement between men, and this is called "positive right," as stated above (Q. 57, A. 2). Now laws are written for the purpose of manifesting both these rights, but in different ways. For the written law does indeed contain natural right, but it does not establish it, for the latter derives its force, not from the law but from nature: whereas the written law both contains positive right, and establishes it by giving it force of authority.

Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right.

Reply Obj. 1: Just as the written law does not give force to the natural right, so neither can it diminish or annul its force, because neither can man's will change nature. Hence if the written law contains anything contrary to the natural right, it is unjust and has no binding force. For positive right has no place except where "it matters not," according to the natural right, "whether a thing be done in one way or in another"; as stated above (Q. 57, A. 2, ad 2).

Wherefore such doc.u.ments are to be called, not laws, but rather corruptions of law, as stated above (I-II, Q. 95, A. 2): and consequently judgment should not be delivered according to them.

Reply Obj. 2: Even as unjust laws by their very nature are, either always or for the most part, contrary to the natural right, so too laws that are rightly established, fail in some cases, when if they were observed they would be contrary to the natural right. Wherefore in such cases judgment should be delivered, not according to the letter of the law, but according to equity which the lawgiver has in view. Hence the jurist says [*Digest. i, 3; De leg. senatusque consult. 25]: "By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man." In such cases even the lawgiver himself would decide otherwise; and if he had foreseen the case, he might have provided for it by law.

This suffices for the Reply to the Third Objection.

_______________________

SIXTH ARTICLE [II-II, Q. 60, Art. 6]

Whether Judgment Is Rendered Perverse by Being Usurped?

Objection 1: It would seem that judgment is not rendered perverse by being usurped. For justice is rect.i.tude in matters of action. Now truth is not impaired, no matter who tells it, but it may suffer from the person who ought to accept it. Therefore again justice loses nothing, no matter who declares what is just, and this is what is meant by judgment.

Obj. 2: Further, it belongs to judgment to punish sins. Now it is related to the praise of some that they punished sins without having authority over those whom they punished; such as Moses in slaying the Egyptian (Ex. 2:12), and Phinees the son of Eleazar in slaying Zambri the son of Salu (Num. 25:7-14), and "it was reputed to him unto justice" (Ps. 105:31). Therefore usurpation of judgment pertains not to injustice.

Obj. 3: Further, spiritual power is distinct from temporal. Now prelates having spiritual power sometimes interfere in matters concerning the secular power. Therefore usurped judgment is not unlawful.

Obj. 4: Further, even as the judge requires authority in order to judge aright, so also does he need justice and knowledge, as shown above (A. 1, ad 1, 3; A. 2). But a judgment is not described as unjust, if he who judges lacks the habit of justice or the knowledge of the law. Neither therefore is it always unjust to judge by usurpation, i.e. without authority.

_On the contrary,_ It is written (Rom. 14:4): "Who art thou that judgest another man's servant?"

_I answer that,_ Since judgment should be p.r.o.nounced according to the written law, as stated above (A. 5), he that p.r.o.nounces judgment, interprets, in a way, the letter of the law, by applying it to some particular case. Now since it belongs to the same authority to interpret and to make a law, just as a law cannot be made save by public authority, so neither can a judgment be p.r.o.nounced except by public authority, which extends over those who are subject to the community. Wherefore even as it would be unjust for one man to force another to observe a law that was not approved by public authority, so too it is unjust, if a man compels another to submit to a judgment that is p.r.o.nounced by other than the public authority.

Reply Obj. 1: When the truth is declared there is no obligation to accept it, and each one is free to receive it or not, as he wishes.

On the other hand judgment implies an obligation, wherefore it is unjust for anyone to be judged by one who has no public authority.

Reply Obj. 2: Moses seems to have slain the Egyptian by authority received as it were, by divine inspiration; this seems to follow from Acts 7:24, 25, where it is said that "striking the Egyptian ... he thought that his brethren understood that G.o.d by his hand would save Israel [Vulg.: 'them']." Or it may be replied that Moses slew the Egyptian in order to defend the man who was unjustly attacked, without himself exceeding the limits of a blameless defence.

Wherefore Ambrose says (De Offic. i, 36) that "whoever does not ward off a blow from a fellow man when he can, is as much in fault as the striker"; and he quotes the example of Moses. Again we may reply with Augustine (QQ. Exod. qu. 2) [*Cf. Contra Faust. xxii, 70] that just as "the soil gives proof of its fertility by producing useless herbs before the useful seeds have grown, so this deed of Moses was sinful although it gave a sign of great fertility," in so far, to wit, as it was a sign of the power whereby he was to deliver his people.

With regard to Phinees the reply is that he did this out of zeal for G.o.d by Divine inspiration; or because though not as yet high-priest, he was nevertheless the high-priest's son, and this judgment was his concern as of the other judges, to whom this was commanded [*Ex.

22:20; Lev. 20; Deut. 13, 17].

Reply Obj. 3: The secular power is subject to the spiritual, even as the body is subject to the soul. Consequently the judgment is not usurped if the spiritual authority interferes in those temporal matters that are subject to the spiritual authority or which have been committed to the spiritual by the temporal authority.

Reply Obj. 4: The habits of knowledge and justice are perfections of the individual, and consequently their absence does not make a judgment to be usurped, as in the absence of public authority which gives a judgment its coercive force.

_______________________

QUESTION 61

OF THE PARTS OF JUSTICE (In Four Articles)

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 rest.i.tution would seem to be an act of commutative justice, we must consider (1) the distinction between commutative and distributive justice; (2) rest.i.tution.

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-pa.s.sion?

_______________________

FIRST ARTICLE [II-II, Q. 61, Art. 1]

Whether Two Species of Justice Are Suitably a.s.signed, Viz.

Commutative and Distributive?

Objection 1: It would seem that the two species of justice are unsuitably a.s.signed, 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.

Obj. 2: Further, the act of justice is to render to each one what is his own, as stated above (Q. 58, A. 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.

Obj. 3: Further, justice is not only in the sovereign, but also in the subject, as stated above (Q. 58, A. 6). But it belongs exclusively to the sovereign to distribute. Therefore distribution does not always belong to justice.

Obj. 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.

Obj. 5: Further, unity or mult.i.tude 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 a.s.signs two parts to justice and says (Ethic. v, 2) that "one directs distributions, the other, commutations."

_I answer that,_ As stated above (Q. 58, AA. 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 Obj. 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 Obj. 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 Obj. 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 Obj. 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.