GIUSTINO (ZAPERTOWICZ) DA MIECHÓW

GIUSTINO (ZAPERTOWICZ) OF MIECHÓW. — Polish Dominican orator and writer, b. at Mio-

Revelation, and divine and human (ecclesiastical and civil) law. While the end and divine law are substantially immutable, human law can and must change, since its only task is to apply the eternal and inalienable demands of nature and grace to different times and places. Moreover, human law necessarily has a statistical character, being modeled on an average. Human law can therefore become unjust for two reasons: either because it is transferred to times and places for which it is not suited; or because it insists on its application even in exceptional cases that fall outside the average line the legislator had in mind. Thus arise all the problems of reforming legal structures to adapt them to new times and places, so as to apply in the best way the demands of natural and revealed law; and the institution of dispensation from the law and of epikeia: in general, all the problems concerning the law to be established against the established law, with a view to a ever deeper realization of the supreme demands of the good.

Here we are dealing with justice as the virtue by which each person is given what is due to them.

II. JUSTICE IN THE STRICT SENSE

The study of justice in this sense requires a deeper understanding of that "what is due," i.e., of the right that justice seeks to give to each person. Every human being, having a spiritual soul and thus being a person, has his own end to attain: the complete development of himself in the immediate and supernatural possession of God. To reach that end, man needs many things: goods to sustain his vegetative life, to protect his existence from the elements and diseases that threaten it, to cultivate his sensibility and intelligence, to manifest to God his complete submission, his gratitude, his indigence, etc. These things, at least for what is strictly necessary, belong to the person, are his belongings; they are not the person, nor do they enter into his physical constitution, but they belong to him; they constitute that "his" which justice, in the sense now under examination, requires to be given to each person. "Mine," "yours," "his," etc., and in general every right indicates something that is not the person nor enters into his physical constitution; therefore it can be taken away without destroying the person; at the same time, however, it belongs to the person, is necessary for his complete fulfillment; consequently it cannot be taken away without diminishing the person himself, without offending his fundamental demands. Here lies the difference between personal pronouns and possessive pronouns: the former stand for the person, the latter instead stand for something that is not the person, but still belongs to him. Here also lies the special characteristic of right: it is at once something external and internal to the person. Being external, right can be violated without destroying the person; being internal, it cannot be violated without deeply wounding him.

From the above it follows at once that justice presupposes the otherness of persons. For justice we step outside ourselves, break with the care of our limited personality to concern ourselves with our neighbors. Justice is for each of us the defense of persons distinct from ourselves.

Moreover, justice has in view what is owed to others, not what is free to give or not to give; and furthermore what is owed to others because it "belongs" to them. Since justice is the virtue that inclines one to give to others what is "theirs," it is not within its power to give or not to give; and it must give for the very reason that it is a matter of something belonging to another.

This leads to the fixing of other characteristics of justice: it has a minimalistic character, but can also be enforced by force and disregards the attitude with which it is given or not given. Minimalistic character: the object of justice is right, i.e., what is indispensable so that the person may, if he wishes, attain his own end. These words must obviously be understood in a human sense, taking into account the actual possibilities of nature as it historically presents itself and the weaknesses that are actually found in it; but also in a strict sense: what is not indispensable for the attainment of the ends of the person is not the object of justice. It can also be enforced by force: for one is here faced with something that is owed because it belongs to the person, because it is "his"; taking it even against the will of the one who wrongly holds it in his possession, justice takes nothing that does not belong to it; it merely takes possession in fact of what is already "its own." It disregards the spiritual attitude with which it is given or refused: it is not interested in whether it is given willingly or unwillingly, freely or grudgingly; only that what is owed is given matters; only the object of justice matters, not the attitude of the one who must carry it out.

III. JUSTICE AND CHARITY

These characteristics of justice appear more clearly when compared with what happens in charity. Charity also presupposes the otherness of persons, but not insofar as they are different and opposed, but insofar as they are in some way united (communion of origin, of destiny, etc.), insofar as, while distinct, they form in some way one thing. Moreover, charity tends to give even what is one's own, first establishing an equality among the different persons who love one another, then a situation of favor for the beloved person (think of the mother who does not sleep so that the child may sleep more peacefully, of the spouse who renounces something of her own to please her husband): it therefore has a maximalistic character, at least tendentially.

Consequently, the predominant element in love is the spiritual attitude with which one gives: one can give even something very precious and show no love, indeed offend the beloved person; while, on the other hand, one can give even something very modest and show great love, making the beloved person happy. Because of this character of spontaneity and generosity, love cannot be demanded by force: one can ask for it, implore it; one cannot in any way demand II.

IV. INJUSTICE

We now have all the elements to define what injustice is. Even in the religious-moral sphere, injustice has three meanings: a general one, by which it signifies vice in general and any violation of moral order; a narrower one, by which it signifies violation of moral order insofar as it commands that each be given his due; and a third, even more particular, by which it signifies the absence of sanctifying grace.

Here we limit ourselves to the second of these meanings, which is also the most frequent. For there to be injustice in this sense, there must be a violation of right in the strict sense; i.e., there must be otherness of persons, that what is owed to another, because it belongs to him, is not given. It is therefore not the same, strictly speaking, to speak of a bad action, a harmful action, and an unjust action. An action can be bad without being unjust in the indicated sense (a blasphemy, for example, does not take anything away from God). An action can be harmful without being unjust: the State, expropriating for reasons of public utility, can cause harm, but not unjust harm. On the other hand, however, every unjust action is also harmful and bad.

Among the many questions on which casuistry has long dwelt, it seems necessary to say a word here about the following: 1) whether an injury done with consent is still an injury; 2) whether injustice can be committed by a purely internal act; 3) whether one can commit injustice by depriving someone of the attainment of a good he does not yet possess.

There are two schools of thought among authors regarding the question of whether an injury is done to one who consents: one, recently championed especially by the Jesuit A. Vermeersch (cf. *Questions de iustitia*, 2nd ed., Bruges 1904, nn. 142–144, pp. 152–157), argues as follows: a right is something that, though ordered to the person, does not belong to the person either metaphysically or physically; it is therefore possible, even if not always lawful, to divest oneself of it; one who does so can no longer suffer injustice; precisely through consent, one divests oneself of one’s right; hence *consentienti non fit iniuria*. According to these authors, the principle therefore has universal validity.

The other school, which is said to have been advocated by a group of theologians mentioned (without naming them) by Lessius (*De iustitia et iure*, Louvain 1605, bk. 7, d. 3) and by some moderns (e.g., E. Ione, *Comp. di teol. mor.*, Turin 1949, n. 323, p. 290), reasons thus: the connection between a right and the person is not a physical one nor dependent solely on the will; it cannot therefore be entirely severed by the physical detachment of the thing nor by the consent of the will; hence consent does not remove the injury unless it concerns rights to which one may renounce.

The first opinion seems clearly preferable. It must, however, be a true consent, not a fictitious one, and a consent by which one renounces one’s right (it is not enough, for example, to consent to what another unjustly does without opposition, as happens, for instance, in the case of martyrs). Moreover, it must be borne in mind that such consent removes from the action the specific malice of injustice, though it does not remove every other malice: the action performed by the other may therefore be evil, even if not of that particular deformity that is characteristic of injustice. The second school seems to arise partly from a confusion between valid renunciation and licit renunciation, and partly between an evil action and an unjust action. No one may licitly renounce one’s own right; often, however, one may validly renounce it: when a valid renunciation has intervened, the violation of the right ceases always to be an injustice, even if it may sometimes remain a morally illicit action. In any case, the first school is the one reflected in the Italian Penal Code, which at art. 5 states: “He who injures or endangers a right with the consent of the person who may validly dispose of it is not punishable.”

As to the question whether an injustice can be committed by an act that is purely internal, it is first necessary to clarify the sense of the question. For it is one thing to ask whether an injustice can be committed by a purely internal act, and another to ask whether the mere will to commit an injustice is already an unjust action. To the first question the answer must be an unequivocal yes. One need only think of rash judgment. To the second question, however, the answer must be no. Certainly, if the term *iniuria* is taken in the first sense indicated at the outset, the will to commit an injustice is already an unjust action. If, however, the term *iniuria* is given the precise meaning determined above, the mere will to divest another or in any way to withhold what is his does not yet constitute in itself the effective negation of that “his,” and therefore does not in itself constitute an unjust act.

These observations lead to the solution of the third question mentioned above, namely whether an injustice is committed merely by preventing someone from attaining a good. Clearly, one may deny another his due either by taking away what he already possesses or by preventing him from attaining what he has a right to possess (for this V. DANNO; LUCRO CESSANTE).

V. THE REPARATION OF INJUSTICE

This entails, besides repentance, the restitution of what has been taken or the compensation for damages unjustly caused. This obligation is expressly affirmed, among other places, in Ecclus 22:1–3, Lev 6:2–5, and is clearly established by reason (v. RESTITUZIONE). It must, however, be a genuinely injurious and culpably caused damage; if the damage or the unjust damage is lacking, one cannot speak of injustice; if the relation of causality is lacking, one cannot affirm the obligation to make reparation.

VI. VARIOUS FORMS OF INJUSTICE

Having treated the general notion of injustice, we now turn to the question of the different forms in which it presents itself or may present itself. This is a point much debated and still obscure in many respects. The traditional, now classical, conception divides injustice into three kinds: commutative injustice, distributive injustice, and legal injustice. In the first, the individual renders to other individuals what is theirs; in the second, society renders to the individual what is his; in the third, the individual renders to society what is its.

Not all agree in the details: some (e.g., A. Vermeersch, op. cit., n. 21, p. 17) divide injustice into particular and general, subdividing the latter into distributive and legal; others (e.g., St. Alphonsus, *Theologia moralis*, bk. 3, tr. 5, n. 486 [ed. L. Gaudé, II, Rome 1907, pp. 3–4]) proceed immediately to commutative, distributive, and legal injustice. Yet all agree in admitting three kinds of injustice: only the violation of commutative injustice could entail the obligation of restitution.

A second school, represented especially by the Dominican M. Héring, maintains that there are only two kinds of injustice: commutative injustice and distributive injustice; what is usually called legal injustice would, in his view, be nothing other than a special virtue ordering the acts of the other virtues to the common good, or simply the aggregate of the other virtues without any relation to the common good. This would, among other things, make intelligible the absence of the obligation of restitution in violations of legal injustice.

Finally, a third, very small school tends to admit three forms of injustice proper, each entailing the obligation of restitution. Thus, for example, J. Carrière writes: “The term commutative justice is used by many authors in two quite different senses: sometimes it means strict justice; sometimes it signifies that exercised by a private individual toward another private individual. If these two meanings are not distinguished, great confusion will result: for it is often said, for instance, that the violation of commutative justice alone gives rise to the obligation of restitution; now this will be true if the term is taken in the first sense; otherwise, not, for the other kinds of justice sometimes have as their object strict rights.” (*De iustitia et iure*, I, n. 7, 2°, p. 9 sqq.; cf. also III, n. 1107, p. 151).

Without entering here into lengthy and subtle discussions, it seems that Héring’s opinion is hardly tenable: wherever there is a person, there is a right, and therefore there is room for injustice. Now society is also, morally speaking, a person; it too has its own rights that must be respected; and it too owes others what is theirs. It therefore seems difficult to deny a threefold relation or a threefold form of injustice: that by which the individual gives to other individuals what is theirs; that by which society gives to individuals what is theirs; and that by which individuals give to society what is its.

It need hardly be recalled that the last two forms of justice have been especially emphasized in recent papal documents, particularly in the great social encyclicals of Leo XIII and Pius XI and in the radio messages of Pius XII. It will be well for theologians and jurists to concentrate their attention upon them if they wish to resolve the problems which our age poses in this field. In such research, the clarification of the end of human life, and in particular the clarification of the end of social life, seems to be decisive. The latter consists above all in the creation of the common good, that is, in the creation of conditions whereby each person, if he so wishes, may live according to the moral norm and thus attain his own end. On the other hand, society does not possess the means to create the common good of itself, nor does it receive them directly from God; it must obtain them from the members of society themselves. Hence we arrive at these formulas: society owes to each person all that is necessary for him to attain his own end; each person owes to society all that is necessary for the common good, that is, so that, in turn, each person may have all that is indispensable for attaining his own end, or, as some like to say (with an expression that needs some clarification): to each according to his needs; from each according to his abilities.

Distributive justice imposes upon society the duty of giving to each person what is indispensable for him to attain his own end. Legal justice imposes upon each person the obligation of giving to society what is indispensable for the existence of the common good. Beyond that limit, the individual owes nothing by way of justice to society, nor does society owe anything to the individual.

Within this framework, the problems of state intervention, of civic freedom in its various applications, of penal law, of capital punishment, etc., must be considered—matters upon which it seems there is still something left to be said.

VII. THE IMPLEMENTATION OF JUSTICE — To whom does the implementation of justice belong, that is, the assignment of what is due to each? In many cases, the interested parties themselves will suffice. Experience shows daily that many just things are accomplished by individuals without any intervention by third parties. This, however, especially in controversial cases, is not always possible. It suffices to consider, on the one hand, that law is minimalistic and enforceable even by force, and, on the other, that man, as he historically presents himself, is profoundly egoistic and thus inclined to exaggerate his own rights and to undervalue those of others. Therefore, if we were to leave it to the right-holders themselves to implement justice, we would run the grave risk of violating justice. For this reason, it is said that no one can implement justice for himself.

With a millennial effort, humanity has sought to remove the implementation of justice from the interested parties, entrusting it to others. This effort includes the prohibition of vengeance and self-defense, the progressive structuring into ever-wider social groups (from the tribe to the infra-national society, to the national society, and to the supernational society), the separation of powers (legislative, executive, judicial) with the attendant independence of the judiciary; the search for forms of control (appellate courts and, within certain limits, courts of cassation), etc.

Unfortunately, this effort is far from concluded. One need only consider the lack of a seriously structured supernational society with legislative, executive, and judicial power; or, within the same national society, the lack of suitable bodies to resolve all labor disputes (e.g., those aimed at obtaining new labor contracts).

Indeed, humanity seems incapable of establishing juridical institutions capable of offering to all and always an absolute and complete protection of rights and a complete defense of justice. For, even if we suppose, for simplicity’s sake, that a perfect supernational society is established: who will defend the individual or the single state from an abuse of power by that society? How can we prevent the repetitions of the usurpations that have so often occurred historically within national society? The same may be said of the separation of powers and the establishment of appellate courts: who can offer an effective guarantee against possible abuses of judicial power, at least in its highest structures?

Therefore, to implement justice completely, we must either appeal to good will (to remedy the insufficiencies of institutions) or refer to another life (in which satisfaction may be given to what cannot always be satisfied in this one).

In the absence of good will, even before the complete implementation of justice—which will take place in the other life—it is not clear how, at least in extreme cases when primordial rights are at stake, we can deny to the individual or to lower groups the right to implement justice for themselves.

This line of reasoning includes the right to take what is necessary in cases of extreme necessity, hidden compensation, strikes, lockouts, legitimate defense, war, revolt, etc. While referring to individual entries for a complete treatment of the matters concerning them, it will suffice here to note that in all these institutions, we are dealing only with the defense of fundamental rights in cases where society does not offer sufficient protection. For all these institutions, therefore, it is necessary: a) that the right in question be evident and moreover fundamental; b) that it be evident that justice cannot be obtained through appropriate institutions (either because they are entirely lacking or because, at a given moment, they are not operative); c) that only what is indispensable for defending one’s own right be done. It is not a question, therefore, of offending another’s right, but only of defending one’s own; and of being resigned to doing so oneself, with all the dangers that may entail, solely because the institutions that should do so do not exist or are not functioning. These considerations must be kept particularly in mind with regard to war and strikes, if we wish to avoid both the danger of a mystique of the strike and of war as well as the danger of a mystique of peace and anti-strike sentiment. Preferences everywhere must be guided by the higher exigencies of greater justice in the world.

VIII. THE EXISTENCE OF JUSTICE IN THE WORLD — Turning now from normative considerations—that is, from the “ought to be”—to historical considerations—that is, to the “being”—it is not difficult to see how in this world justice is not always implemented. The imperfection of institutions and the progressive perfection of instruments of force, at the service of profound egoism, mean that what is due to each is not always given. The fields and forms in which justice is violated vary, and sometimes profoundly (individual rights [e.g., slavery], civic rights [e.g., totalitarian forms of government], economic rights, etc.); but violations seem always to exist.

One understands then the ardent invocation of humanity to God and to the beyond in function of a complete implementation of justice. To what extent such exigency and such invocation are a rationally sufficient motive for admitting the existence of God and of a future life is left to philosophers to judge. To sociologists, too, is left the judgment of to what extent that appeal stands historically at the base of the religious fact.

Here it is desired to say only that, according to Catholic doctrine, that justice which does not always exist in this life will certainly be realized in the life to come. For everyone will in the next life possess that which he shall have “merited” in this life by his free actions. Grace constitutes a true right to glory, and guilt a true title to damnation; moreover, both the reward and the punishment will correspond to criteria of justice. The divine wisdom and power and the perfect knowledge which He has of the human heart and of the use of free will will not be an obstacle but precisely the presupposition for giving to each his “due,” and thus for truly and fully realizing justice.

IX. THE EVOLUTION OF JUSTICE

A first evolution of justice is seen in the search for ever more perfect institutions to realize rights historically acquired. In this sense, the introduction of the separation of powers was certainly a great achievement; likewise, the structuring of a supernational society will be so in the future.

A further form of evolution lies in the deeper determination of the sphere of rights. The affirmation, namely, that justice gives to each his due is still purely formal, for it does not in itself specify what concretely falls within that “due” which one wishes to give to each: does, for example, a family wage fall within the scope of that “due”?

This second line of development requires an ever deeper understanding of the insuppressible exigencies of the human person and of his absolute value, at least in the created world.

From this point of view, Christianity has historically signified an incalculable contribution to the evolution of justice.

Giovanni B. Guzzetti