A. 4. Should We Distinguish Paternal Right and Master-Slave Right as Special Kinds of Right?
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In ST II–II, Q. 57, Thomas says that right is the object of justice, which directs human beings in their relations with others (A. 1). He distinguishes natural right, which consists of rendering to others things equivalent by their nature, and positive right, which consists of rendering to others things equivalent by private or public agreement (A. 2); the common right of peoples (the jus gentium), which consists of rendering to others things commensurate by reason of their consequences (A. 3); parental right and master-slave right, which consist of rendering to others things commensurate by reason of children or slaves belonging to their parents or masters in certain respects (A. 4).
In ST II–II, Q. 58, Thomas defines justice as the perpetual and constant will to render to others their rights (A. 1), and justice is always in relation to others (A. 2). Justice is a virtue (A. 3) and belongs to the will (A. 4). Justice in general is virtue in general insofar as justice directs the acts of other virtues to the common good (A. 5), but justice is essentially different from other virtues (A. 6). There is also particular justice (A. 7), which concerns external actions and things (A. 8). Justice is not about governing emotions (A. 9), and the mean of justice is a real mean, not a mean of reason (A. 10). Just acts render to others what is owed to them (A. 11). Justice is the greatest moral virtue (A. 12).
In ST II–II, Q. 61, Thomas distinguishes two kinds of particular justice: commutative justice, which consists of just exchanges between individuals; and distributive justice, which consists of just distributions of common goods to individuals (A. 1). The mean of commutative justice is arithmetic, and the mean of distributive justice is geometric (A. 2). Commutative justice and distributive justice have different subject matters: the former concerns activities involving exchanges, and the latter activities involving distributions (A. 3).
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On Right1
We thus proceed to the first inquiry. It seems that right is not the object of justice, for the following reasons:
Obj. 1. The jurist Celsus says that “establishing right is skill in establishing goodness and fairness.”2 But skills as such are intellectual virtues, and so the skill of establishing right is not the object of justice. Therefore, right is not the object of justice.
Obj. 2. Isidore says in his Etymologies: “Law is a species of establishing right.”3 But law is the object of practical wisdom rather than the object of justice. And so also the Philosopher designates lawmaking part of practical wisdom.4 Therefore, right is not the object of justice.
Obj. 3. Justice chiefly renders human beings subject to God, for Augustine says in his work On the Morals of the Church: “Justice is love that serves God alone and for that reason rightly governs other things, which are subject to human beings.”5 But right belongs only to human affairs, not divine matters, for Isidore says in his Etymologies: “Divine law makes allowances, but human law establishes right.”6 Therefore, right is not the object of justice.
On the contrary, Isidore says in the same work that “right is called such because it is just.”7 But just deeds are the object of justice, for the Philosopher says in the Ethics that “all human beings agree about calling justice the habit whereby they perform just deeds.”8 Therefore, right is the object of justice.
I answer that in contrast to other virtues, it is the object of justice to direct human beings in their relations with one another. For justice signifies a certain equality, as the very name indicates, since we commonly speak of equal things being exactly right. And things have equality in relation to other things. But other virtues perfect human beings only {99} regarding things that befit human beings in their own individual regard.
Therefore, we understand the rectitude of the acts of other virtues, for which, as their proper objects, the other virtues strive, only in relation to the human beings performing the acts. But the relation of acts of justice to other persons, in addition to the acts’ relation to the human beings performing the acts, constitutes the rectitude of the acts. For we call our deeds just if they return quid pro quo to others (e.g., the payment of wages due for services rendered).
Therefore, we call just, as possessing the rectitude of justice, things that are the termini of acts of justice, even apart from how the human agent performs them. But in the case of other virtues, we specify things as right only if the human agent performs the things in a certain way. And so we specify the object of justice as such beyond that of other virtues, and we call just things the object. And so right is clearly the object of justice.
Reply Obj. 1. We are wont to adapt words from their original use to signify other things. For example, we first use the word medicine to signify a remedy administered to the sick to cure them and then extend the term to signify the skill that accomplishes this. Just so, the word right was first used to signify the very things that are just. And the word was later extended to signify the skill whereby lawmakers know what is just. And the word was further extended to signify the courts where right is adjudicated, as, for example, we speak of persons appearing in courts of law. And we also further speak of decisions by officials administering justice as establishing right, even if their decisions are evil.
Reply Obj. 2. A plan for the things a craft produces externally, the plan we call the rule of the craft, preexists in the mind of artisans. Just so, a plan for the just deeds reason specifies, a rule of practical wisdom, so to speak, preexists in the mind of lawmakers. And we call the lawmakers’ plan, if expressed in written form, a statute, for a statute is a “written decree,” as Isidore says.9 And so a statute is not, strictly speaking, the very right established but a plan establishing the right.
Reply Obj. 3. Justice signifies equality. But we cannot give equal recompense to God. And so we cannot return to God what is just in the fullest sense. And so, properly speaking, we speak of divine law as making allowances, not as in the case of [strict] right, since God is clearly satisfied if we fulfill his law as far as we can. Nonetheless, justice aims for human beings, as far as they can, to repay God by completely subjecting their souls to him.
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We thus proceed to the second inquiry. It seems that we inappropriately so divide right, for the following reasons:
Obj. 1. What is natural cannot be changed, and all peoples so judge. But there is no such thing in human affairs, since all rules of human law are wanting in particular cases, nor are they in force everywhere. Therefore, there is no natural right.
Obj. 2. We call anything produced by the human will something positive. But nothing is just simply because it is produced by a human will; otherwise, the human will could not be unjust. Therefore, since the just and right mean the same thing, it seems that there is no positive right.
Obj. 3. Divine right, since it surpasses human nature, is not natural right. Likewise, divine right, since it relies on divine rather than human authority, is not positive right. Therefore, we inappropriately divide right into only two kinds of right, natural and positive.
On the contrary, the Philosopher says in the Ethics that “part of political justice is indeed natural, and part legal,”10 that is, established by positive law.
I answer that, as I have said before,11 right or justice consists of rendering to others things equivalent by some measure of equality. And equivalent things can be rendered to others in two ways. Things can indeed be so rendered to them in one way by the very nature of the things, as, for example, when one gives so much in order to receive so much. And we call this natural right.
Things are equivalent to, or commensurate with, other things in a second way by agreement or mutual consent, namely, when one deems oneself content to receive so much. And this can indeed happen in two ways. It happens in one way by private agreement, as something confirmed by a contract between private persons. It can happen in a second way by public agreement, as, for example, when the whole people agree that things be considered equivalent to, or commensurate with, other things, or when a ruler in charge of the people and acting on its part so ordains. And we call this positive right.
Reply Obj. 1. What is natural for things having an immutable nature needs to be always and everywhere such. But the nature of human beings is mutable. And so what is natural for human beings can sometimes be wanting. For example, it is natural equity to return entrusted things to {101} their owners, and so this principle should always be observed if human nature were always righteous. But since the will of human beings may sometimes be evil, there are cases in which entrusted things should not be returned to their owners lest human beings having a wicked will use the things wickedly (e.g., if a madman or enemy of the commonwealth should demand return of his weapons).
Reply Obj. 2. The human will can, by common agreement, make something just in the case of things as such compatible with natural justice. And positive right plays a role in such things. And so the Philosopher says in the Ethics that legal justice “concerns things about which it initially makes no difference whether they are done in this or that way, but it does matter when they are prescribed as law.”12 But if something of itself should be incompatible with natural justice, the human will cannot make it just. For example, such would be the case if laws should decree that it is permissible to steal or commit adultery. And so Is. 10:1 says: “Woe to those who establish wicked laws.”
Reply Obj. 3. We call decrees promulgated by God divine right. And divine right indeed partially concerns things just by nature, although their justice is unknown to human beings, and partially concerns things just by divine institution. And so also we can distinguish divine right by these two kinds of just things, just as we can distinguish human right by them. For divine law commands certain things because they are good and prohibits certain things because they are evil. And other things are good or evil because divine law commands or forbids them.
Is the Common Right of Peoples [Jus gentium] the Same as Natural Right?
We thus proceed to the third inquiry. It seems that the common right of peoples is the same as natural right, for the following reasons:
Obj. 1. Human beings agree only about things natural to them. But all human beings agree about the common right of peoples, for the Jurist says that “the common right of peoples is the right that all peoples recognize.”13 Therefore, the common right of peoples is natural right.
Obj. 2. Human slavery is natural, since some human beings are by nature slaves, as the Philosopher says in the Politics.14 But slavery belongs to the common right of peoples, as Isidore says.15 Therefore, the common right of peoples is natural right.
{102} Obj. 3. We divide right into natural right and positive right, as I have said.16 But the common right of peoples is not positive right, since all peoples have never agreed to establish any right by mutual agreement. Therefore, the common right of peoples is natural law.
On the contrary, Isidore says that “right is either natural or proper to a political community or common to all peoples.”17 And so he distinguishes the common right of peoples from natural right.
I answer that, as I have said before,18 right or natural justice consists of things equated or commensurate with other things. And this can be so in two ways. It can happen in one way as we consider things absolutely. For example, men are by their nature commensurate with women in begetting offspring, and parents are commensurate with children in rearing the latter.
Things are by nature commensurate with others in a second way by reason of their consequences, not as we consider them absolutely. For example, dominion over property is such. For if we should consider a particular plot of farmland absolutely, there is no reason why it should belong to one person rather than to another. But if we should consider the plot of farmland with respect to its opportune cultivation and settled use, the land in this respect commensurately belongs to one person rather than another, as the Philosopher makes clear in the Politics.19
And to take possession of something absolutely is proper both to human beings and to other animals. And so the right we call natural in the first way is common to us and to other animals. And the common right of peoples is distinct from the right called natural in the above sense, because, as the Jurist says,20 “The latter right is common to all animals, the former only to human beings.” But considering things in relation to their consequences belongs to reason. And so the jurist Gaius says: “All peoples cherish what natural reason establishes with all human beings, and we call such the common right of peoples.”21
Reply Obj. 1. The answer makes clear the reply to obj. 1.
Reply Obj. 2. There is no natural reason, absolutely speaking, why this person rather than that person should be a slave. But there is only a beneficial result, since it is useful that particular persons be ruled by those wiser, and that the former assist the latter, as the Politics says.22 And so the slavery associated with the common right of peoples is natural in the second way, not the first.
{103} Reply Obj. 3. Since natural reason dictates things belonging to the common right of peoples (e.g., things having approximate equality), such things do not need any particular institution. Rather, natural reason instituted them, as the cited authority of Gaius said.23
We thus proceed to the fourth inquiry. It seems that we should not distinguish paternal right and master-slave right as special kinds of right, for the following reasons:
Obj. 1. It belongs to justice “to render to each what belongs to each,” as Ambrose says in his work On Duties.24 But right is the object of justice, as I have said.25 Therefore, right belongs to everyone. And so we should not distinguish paternal right and master-slave right as special kinds of right.
Obj. 2. Law is the plan for what is just, as I have said.26 But law concerns the common good of a political community or kingdom, as I have maintained before,27 not the private good of one person or one household. Therefore, there should not be any special right or justice, whether paternal or master-slave, since masters and fathers belong to households, as the Politics says.28
Obj. 3. Human beings belong to many other different ranks. For example, some are soldiers, some priests, some rulers. Therefore, we should specify what is just for them.
On the contrary, the Philosopher in the Ethics specifically distinguishes master-slave and paternal justice and the like from political justice.29
I answer that we speak of right or justice as the commensuration of some things to other things. And we can speak of things being other in two ways. We can speak of them in one way as absolutely other, as altogether different. Such is evidently the case of two persons neither of whom is subject to the other, although both are subject to the ruler of their political community. And among such, there is justice without qualification, as the Philosopher says in the Ethics.30
We speak of things being other in a second way, not absolutely other but as one thing belongs to the other. And regarding human life, children {104} belong to their fathers in this way, since they are in a way parts of their fathers, as the Ethics says.31 And slaves belong to their masters, since slaves are their masters’ instruments, as the Politics says.32 And so fathers are not related to their children as absolutely other. And so the paternal relationship has a certain justice, namely, paternal justice, but not justice absolutely. And by the same argument, the master-slave relationship has a certain justice, namely, master-slave justice, not justice absolutely.
And wives belong to their husbands, since husbands are related to their wives as to their own bodies, as the Apostle makes clear in Eph. 5:28. Nonetheless, wives are more distinct from their husbands than children are from fathers, or slaves from masters, since wives are partners in the social life of marriage. And so there is more of the character of justice between husbands and wives than between fathers and children, or masters and slaves, as the Philosopher says.33 But husbands and wives have a direct relation to a household community, as the Politics says.34 Therefore, there is between them household justice rather than political justice in the absolute sense.
Reply Obj. 1. It belongs to justice for human beings to render to others what is due them, but this assumes that the one rendering is distinct from the one receiving. For we do not call giving to oneself what is owed to oneself justice in the strict sense. And since what belongs to children belongs to their fathers, and what belongs to slaves belongs to their masters, there is no justice in the strict sense between fathers and children or between masters and slaves.
Reply Obj. 2. Children as such belong to their parents, and likewise slaves as such belong to their masters. But both children and slaves considered as human beings are as such subsistent and distinct from other human beings. And so insofar as they are human beings, there is justice in their regard in that respect. And there are also for this reason laws regarding the relations of fathers to their children and of masters to their slaves. But insofar as both belong to others, the complete nature of justice or right is lacking.
Reply Obj. 3. All other distinctions between persons in political communities bear a direct relationship to the communities and their rulers. And so there is justice in the fullest sense in regard to those persons. But we distinguish such justice by different duties. And so also we speak of {105} military right or magisterial right or priestly right because things proper to every condition of persons are due persons in accord with their particular stations, not because such rights fall short of justice absolutely, as when we speak of paternal right and master-slave right.
1The Latin word jus means law or right. In at least the first article of this question, Thomas seems to be using jus in the latter sense. But since it is law that establishes right, right and law are correlative. In subsequent articles of the question, we have continued to translate jus as “right,” although “law” would there also seem to fit the contexts (e.g., “common law of peoples” for “common right of peoples”).
2Justinian, Digest I, title 1, c. 1.
3EtymologiesV, 3, n. 1 (PL 82:199).
4EthicsVI, 8 (1141b25–9).
5On the Morals of the Church 15 (PL 32:1322).
6Etymologies V, 2, n. 2 (PL 82:198). Isidore literally says that divine law is fas, that is, divine law or divine right. The point is that divine law makes allowances for the human condition and does not (impossibly) insist on strict quid pro quo, and we have freely translated the quotation accordingly.
7Ibid., V, 3, n. 1 (PL 82:199).
8EthicsV, 1 (1129a7–11).
9EtymologiesV, 3, n. 2 (PL 82:199).
10EthicsV, 7 (1134b18–9).
11ST II–II, Q. 57, A. 1.
12EthicsV, 7 (1134b20–4).
13Digest I, title 1, c. 1.
14Politics I, 2 (1254a15).
15EtymologiesV, 6, n. 1 (PL 82:199).
16ST II–II, Q. 57, A. 2.
17EtymologiesV, 4, n. 1 (PL 82:199).
18ST II–II, Q. 57, A. 2.
19Politics II, 2 (1263a21–4).
20Digest I, title 1, c. 1.
21Ibid., c. 9.
22Aristotle, Politics I, 2 (1255b5–9).
23At the conclusion of the body of this article.
24On Duties I, 24, n. 115 (PL 16:57).
25ST II–II, Q. 57, A. 1.
26Ibid., ad 2.
27ST I–II, Q. 90, A. 2.
28Aristotle, Politics I, 2 (1253b5–8).
29EthicsV, 6 (1134b8–9).
30Ibid., (1134a26).
31Ibid., VIII, 12 (1161b18–9).
32Aristotle, Politics I, 2 (1253b32; 1254a14–5).
33Ethics V, 6 (1134b15–8).
34Aristotle, Politics I, 2 (1253b6–11).