II. SPECIAL MORAL THEOLOGY (Continued) (part 1 of 4)
Question II
THE DUTIES OF ALL CLASSES OF MEN (THE MORAL VIRTUES)
1626. After the theological virtues, which offer to God the services of faith, hope and charity, and which direct man to his Last End, follow the cardinal or moral virtues, which perfect the actions and passions of man, and make of them means for tending to the Last End. Of these four virtues (prudence, justice, fortitude and temperance), prudence is ranked first, as being the director of the others.
Art. 1: THE VIRTUE OF PRUDENCE
(Summa Theologica, II-II, qq. 47-56.)
1627. Definition.--All the definitions of prudence are in substantial agreement, and from them we may formulate a detailed definition as follows: “Prudence is the virtue that consults well about the means to be used for leading a good life and applies the knowledge acquired through consultation to particular contingencies as they arise.”
(a) Thus, prudence consults well, for its office is to study ways and means to right conduct, and to arrive at a sound judgment in spite of various uncertainties or unknown factors. Of the two practical virtues of the intellect, namely, art and prudence, the former deals with the application of right reason to cases in which there are, for the most part, certain and determinate ways of arriving at the end in view (e.g., the rules of logic or grammar, the methods of music or sculpture); while the latter has to do with the application of right reason to cases in which the ways of obtaining the end in view are not certain or determinate (i.e., the infinitely varied questions of lawfulness or unlawfulness that present themselves in concrete and particular situations).
(b) Prudence studies the means to a good life; and hence we do not consider a man as generally prudent, if he consults well for this or that particular good end, but not for the general end of leading a good life. Nevertheless, prudence falls short of the Gift of Wisdom, for prudence is concerned with human good, wisdom with divine good.
(c) Prudence applies knowledge to the direction of conduct, for the purpose of the practical virtues of the intellect is to guide the activities and productions of man according to the light of right reason. It should be noted, however, that whereas the application of knowledge is intrinsic to prudence, it is extrinsic to art; for prudence includes in its very essence a determination of the will to goodness, but not so art. Hence, a painter is not the less skilled in his profession if he voluntarily fails to exercise it or exercises it badly, but a person skilled in moral science is imprudent if voluntarily he fails to use his knowledge or uses it amiss. The sin against art is not to know; the sin against prudence is either not to know what one should know or not to apply rightly what one does know.
1628. The Objects of the Act of Prudence.--(a) Prudence is concerned, not with speculative truth (i.e., with those things that are known for the sake of knowledge), but with practical truth (i.e., with those things that are known for the sake of use). It aims, not to investigate and discover what is the nature of virtue, but to guide man so that he may become virtuous and practise virtue. It should be noted, however, that the acts of the speculative reason, although they do not belong to prudence itself, are like other acts subject to the direction of prudence; for in pursuing speculative studies one should use good judgment as to the subjects to be considered, the time, place, manner, etc., of study.
(b) Prudence is not concerned with necessary truths and first principles of morality, but with their application to contingent and particular cases, just as a physician is called on to cure, not a universal or abstract man, but the particular and individual man before him. But since one cannot well apply that of which one is ignorant, the prudent man must be acquainted both with the general rules of right living and with the particular things to which his knowledge is to be applied. He lacks prudence, therefore, who from vincible ignorance does not know a general principle (e.g., that too much drink is bad), or a case to which that principle should be applied (e.g., that the quantity of drink before one is too much).
1629. It is customary to distinguish a twofold object of a virtue, namely, the material object (i.e., the kind of activity the virtue perfects, whether in the field of knowledge, or of action, or of production) and the formal object (i.e., the special viewpoint of goodness from which the material object is considered).
(a) The material object of prudence embraces individual human actions performed under choice and freely (agibilia). (b) The formal object of prudence is the right deliberation, decision, and direction (recta ratio) to be given to human actions, with a view to the observance of the golden mean.
1630. Necessity of Certitude.--Prudence, being an intellectual virtue, must have certainty (see on the Certain Conscience, 640 sqq.). But with regard to particular contingencies (e.g., whether Balbus ought to marry Caia) there are various kinds of certainty.
(a) There is the certainty of knowledge based on a generalization from experience of what happens in the majority of cases (e.g., that persons well mated by reason of birth, age, dispositions, etc., marry successfully). This kind of certainty belongs to moral science.
(b) There is also a certainty of knowledge based on the indications in a particular case (e.g., that Balbus and Caia appear to have congenial dispositions and a mutual affection that will make their marriage a success). This is the certainty of opinion, and while it may suffice as a rule for conscience (see the Systems of Conscience, 672 sqq.), events do not always verify its predictions. Hence it is said: “The thoughts of mortal men are fearful and our counsels uncertain” (Wis., ix. 14).
(c) There is finally the certainty of practical truth, which consists in harmony with a good will. This is the certainty that is proper to prudence, for this virtue is not a matter of reason alone. Hence, even though a matter properly decided on should not take place or should fail of the purpose intended (e.g., if the marriage of Balbus and Caia is prevented or turns out badly), it remains that prudence was not deceived in its decision, for that decision when made was according to right reason and a good will (see 578).
1631. Relation of Prudence to the Other Moral Virtues.--(a) Prudence does not direct the moral virtues to their own proper ends; for the knowledge of those ends comes from synteresis, or moral understanding (i.e., the natural perception of the first principles of right and wrong), while the inclination to those ends is from the moral virtues themselves. Prudence does not deal with first principles, nor is it an inclination towards particular ends. Hence, it is the intellectual virtue of synteresis that directs the moral virtues through the dictate that right reason must be followed, that moderation must be observed, that the passions of anger, pleasure, sorrow, etc., must be so regulated that both extremes of excess and defect will be avoided.
(b) Prudence directs the moral virtues to the ways and means by which their ends are to be attained; for the regulation of things particular and variable, such as ways and means, pertains to prudence. Synteresis is concerned with necessary principles, and the moral virtues give a uniform and steady inclination to follow the mean of right reason, but neither the one nor the other can indicate how principles are to be applied or how inclinations are to be put in practice. Hence, it is the work of moral science to determine what or how much anger, pleasure, sorrow, etc., is moderate for the average case; but prudence has to decide this for a particular case here and now (see on Conscience, 575). Without prudence bravery becomes foolhardiness, temperance degenerates into fanaticism, and mercy changes to weakness.
1632. Prudence, indeed, directs the acts of all the virtues, ruling the virtues inferior to it (i.e., art and the moral virtues), and serving the virtues that are its superiors (i.e., the speculative intellectual virtues and the theological virtues).
(a) Thus, in exercising the intellectual virtues through study, contemplation, art, etc., one would go sadly astray if one did not consult prudence as to the time, manner, and method of performing these acts. Hence, a housewife who spent too much time in meditation would neglect her domestic duties.
(b) In exercising the theological virtues, through acts of faith, hope, and charity, there is also need of prudence, for it is not possible to continue in these acts without interruption, since there are times when other acts of virtue have to be attended to, and also times for repose. Thus, a person who goes about giving alms to the poor at hours when he is supposed to be at work for which he receives pay, is not prudent in his charity, since he does not choose the right time to exercise it.
1633. The Exercise of Prudence.--The acts that belong to prudence are those that one needs in order to direct one’s conduct to that moderation which is the end of virtue. They are three: deliberation, decision, direction.
(a) Hence, in the first place, prudence takes counsel on, and deliberates about, the ways and means; (b) after ways and means have been discovered, it passes judgment (see 575) on their suitability (e.g., that restitution should be made at such a time, in such a way, in such an amount, etc., or that moderation in eating and drinking requires that this or that amount be taken, that this or that kind of food be avoided, etc.); (c) finally, but chiefly, prudence gives the command that what has been decided on be carried out, whether this be the quest of certain things that are advantageous or the avoidance of certain things that are dangerous.
1634. Qualities of Prudence.--The qualities that should characterize prudence are carefulness and confidence.
(a) Carefulness is a watchful attention given to deliberation and judgment enabling one to act with readiness and decision when the moment for action has arrived. Its necessity for prudence is clear, for one does not counsel or judge well unless one has a matter at heart, is anxious about its success, and devotes to it serious study and vigilance; nor does one direct well if there is hesitation and delay instead of promptness in performing what has been decided on. In a word, one should be quick in execution, but slow in deliberation. Hence the admonition of St. Peter to be prudent, and to be attentive to prayer as a preparation for a good life and for the judgment (I Peter, iv. 7). An example of carefulness is St. Paul, who was solicitous about all his churches (I Cor., xi. 28), ever inquiring about their condition, their progress, their needs, etc.
(b) Confidence, as a quality of prudence, is a reliance on judgments carefully formed which excludes worries and undue hesitations. This is necessary as a balance to carefulness; for while it is true that absolute certainty is not to be expected in forming decisions about courses of action (the future event and also many present things bearing on it being unknown to us), it is also true that overcarefulness blinds the judgment and paralyzes decision. In the character of Hamlet Shakespeare pictures the man who is imprudent through excess of caution.
1635. The Parts or Kinds of Prudence.--As the divisions of parts correspond with the divisions of wholes, we should note that there are three kinds of wholes: a subjective, an integral, and a potestative whole.
(a) A subjective whole is one that is present as to its entire essence and all its power in each of the parts. This kind of whole is found in the genus, each of whose species partakes of the entire nature and energy included in the generic concept, just as the mode of being and of acting expressed by the term “animal” is found fully in dogs, cats, horses, and so on with the other kinds of animals.
(b) An integral whole is one that is not present in all its fullness either of essence or of power in the single parts. This kind of whole is found in a finished composite made up of heterogeneous units, such as a house; for neither walls, nor roof, nor foundation, nor any other single portion of the building is a complete house or has all the uses of a house, but if any one of them is lacking the house is not integral or complete.
(c) A potestative whole is one that is present in all its essence, but not in all its power in each single part. This kind of whole is exemplified in an active principle functioning through diverse faculties, such as the soul which thinks, wills, perceives, accomplishes by means of mind, will, sense, and bodily organs. The soul is present in its entirety in each of these, since it is a simple substance, but in one it exercises one power, in another a different power, in none of them all its powers.
1636. It is customary to speak also of the integral, subjective and potestative parts of a moral virtue. (a) Thus, the quasi-integral parts of a virtue are those functions without which its act is not perfectly performed; and with which it is more perfect. (b) The subjective parts are the species into which the virtue is divided. (e) The quasi-potestative parts are certain subsidiary or annexed virtues which have to do with the secondary acts of a principal virtue, as not having the full efficacy of the latter.
1637. Integral Parts of Prudence.--The integral parts of prudence, considered as a cognitive virtue or as an index of the right means, are those acts which enable one to have knowledge and to acquire knowledge. (a) Thus, the acts requisite for the possession of knowledge about ways and means are the memory of the past and the understanding of the present situation. (b) The acts requisite for the acquisition of new knowledge are docility, by which one learns from others, and quickness of perception, by which one discovers for oneself.
1638. The integral parts of prudence, considered as an operative or a preceptive virtue--that is, as the counsellor and director of life and behavior--are the acts without which one cannot make good use of knowledge as applied to conduct.
(a) Thus, knowledge of general principles must be applied to particular affairs, and this supposes that one knows how to reason correctly, how to infer the particular from the general, how to put facts together. Even those who are not skilled dialecticians have a certain amount of natural logic, and are able to make good use of data or premises in drawing conclusions about their obligations, and thus to make a prudent application of what they know.
(b) Knowledge gained through deliberation has to be effectually made use of; that is, the reason must impose its judgment carefully formed, must determine the line of action to be followed, must properly dispose the means in view of the end. This requires that a person should so direct his future acts as means to the end he has in view that they will be good in themselves (foresight or providence) and in their circumstances (circumspection), and that he will be guarded against external impediments that might hinder him, steering clear of both Scylla and Charybdis (caution): “The prudent man considereth his steps” (Prov., xiv. 15). Examples: Titus wishes to help the poor, and decides on certain methods of raising the money that are dishonest and disedifying. Balbus wishes to induce Caius to go to church, and therefore shows him marks of friendship, not reflecting that these acts of friendship, on account of the character of Caius, will arouse only haughtiness or suspicion. Claudius, in order to practise mortification, resolves on a fast, but also makes up his mind to visit certain friends who will try to make him break his resolution. Sempronius resolves to provide well for his family and also for certain deserving charities, but he fails to insure his property, to invest his money well and to make a will, with the result that neither his family nor the poor are provided for as he had intended. Titus lacked foresight, Balbus was not circumspect, Claudius and Sempronius were incautious.
1639. The Subjective Parts or Species of Prudence.--Prudence in general is the right direction of human actions to their ends; and hence there will be as many different kinds of prudence as there are different kinds of ends of human actions. But the division of ends will be into the particular good of the individual and the common good of the multitude, and thus there are the two species of individual or personal prudence and social prudence.
(a) Individual prudence is the right management of his own acts by the individual, with a view to his personal uprightness.
(b) Social prudence is the right management of the acts of others or of self, with a view to the general welfare of a society.
1640. Social prudence in turn is subdivided in accordance with the two classes of society, the perfect and the imperfect, into political and domestic prudence. (a) Political prudence is the right administration of the affairs of a larger multitude, such as the State. (b) Domestic prudence is the right administration of the affairs of the family.
1641. Political prudence, according to usage, often has or may bear an unfavorable and evil signification. Hence, as we are considering now the virtue of prudence, we should remark that political prudence here is something very different from political methods or practices that are wise in evil, but not in good, though often called prudent (see 1651, 1674 sqq.). Examples: (a) Evil forms of government, such as tyranny, oligarchy, or mob rule, cannot be said to have the virtue of political prudence, no matter how successful they may seem, for they do not rule in the interests of the people at large, and this interest is the very beginning and end of true social prudence. (b) Evil practices in the regulation of government or of political parties--such as employment of foul means to maintain the interests of the State, corruption, bribery, intimidation, used for the purpose of winning the election of a ticket or candidate--cannot be honored with the name of prudence, but should rather be called Machiavellism and dishonest politics.
1642. Prudence exercised for the benefit of the nation as a whole should be found, not only in rulers, but also in private citizens. We may distinguish, then, the following kinds of prudence:
(a) in those who conduct the affairs of the nation there should be governmental prudence or statesmanship. Of rulers prudence in the highest degree is expected; for the chief function of prudence is to direct actions, and the heads of States must direct not only their own actions but those of great bodies of men. Scripture speaks of prudence and justice as the two virtues that are especially needed in a prince (Jer., xxiii. 5);
(b) in those who direct the defense of the nation against its enemies there should be military prudence, for bravery has to be guided by wisdom: “A wise man is strong, and a knowing man, stout and valiant, because war is managed by due ordering, and there shall be safety where there are many counsels” (Prov., xxiv. 5, 6);
(c) in subjects there should also be political prudence, for, as they are rational beings and members of society, they should willingly rule their acts according to the law and should fulfill their own particular offices with a view, not only to their own individual good, but to the good of the whole community.
1643. Utility of Prudence for Society.--Hence, we see that none of the virtues is selfish or concerned exclusively with the good of individuals. (a) Thus, prudence, as just said, is political and domestic as well as individual; (b) justice is legal (i.e., towards society) as well as commutative (i.e., towards individuals); (c) even temperance (e.g., avoidance of drunkenness) and courage (e.g., defense of public safety) pertain to the common good and are commanded in laws of the State.
1644. Prudence attends chiefly to good morals, but it attends also to other goods that benefit human life.
(a) Thus, personal prudence directs one, not only to seek after virtue, but also to seek after lawful conveniences and to shun such things as are embarrassing or undesirable. Hence, the prudent man acts so as to avoid offense and to gain the good will of others; he studies the dispositions of those with whom he lives, so as to live peaceably, etc.; he protects himself against the attacks and snares of the unfriendly (cfr. Acts, xxiii. 6; Matt., xxii. 17).
(b) Domestic prudence provides not only for the virtuous lives of the members of the household, but also for their health and happiness, food and clothing, and other necessities and lawful pleasures (Luke, xii. 42).
(c) Political prudence is exercised, not only in the regulation of the conduct of the people through good laws, but also in the promotion of their welfare, peace, prosperity, and contentment.
(d) Military prudence provides for religion and good morals, by appointing chaplains, giving opportunity for religious exercises, insisting on discipline and military virtues, etc.; but it also looks after the interests of the individual men, the efficiency of all branches of the service, preparedness of the fighting forces, etc.
1645. Neither should practical prudence or practicality (i.e., the knowing what to do and how to do it) be identified with merely material pursuits, since it is a quality that pervades all human activity, from the lowest to the highest, from the manual to the intellectual, from the temporal to the spiritual. Just as there are unpractical mechanics and business men who are not skilled at their work, so also there are practical students and church people who do their own work well and get good results.
1646. The Potential Parts of Prudence.--As was explained in 1636, the potential parts of a virtue are certain annexed virtues, usually inferior ones, that have to do with the secondary acts of a virtue to which they are subordinated. The principal act of prudence is direction, its secondary acts are deliberation and decision (1633). Hence, we have the following potential parts of prudence:
(a) wise deliberation (eubulia), which is a habit of debating with oneself according to correct methods the means to be employed for virtuous choice;
(b) wise decision, which is an habitual state of the mind which makes it ready to draw right conclusions about the means to be chosen for virtuous conduct.
1647. Wise deliberation and wise decision differ from prudence, which is wise direction, and they are subject to it just as counsellors are subject to a commander. But is it possible for these three virtues to exist apart?
(a) If there is question only of natural dispositions to these virtues, they may exist apart. Thus, we find that certain persons have an imagination ready to discover ways and means; that others are not so inventive, but are remarkable for common sense in choosing the most suitable means; and that still others are so inclined to some virtue that they will promptly make use of means that tend to it. The first class are readily listened to in deliberations, the second in decisions, while the third are usefully employed in executing matters that suit their natural bent (e.g., the naturally generous in dispensing alms).
(b) If there is question of the virtues themselves, they do not exist apart; for a man is not prudent if he does not deliberate as he should (e.g., if he searches for evil means to effect his good purpose), or if he does not decide as he should (e.g., if he concludes to prefer evil means to the good ones his deliberation had shown him), or if he does not direct his actions as he should (e.g., if he neglects to carry out what he had decided on as a necessary duty or performs it in a careless or improper way). True prudence, then, is wise in deliberation, in decision, in direction. A good man may be excused if he is not resourceful, or if he lacks sound judgment in worldly matters, but one who is imprudent in the matter of a virtuous life is not a good man.
1648. The Persons Who Possess Prudence.--Political prudence, if understood of the ability to rule well, is not found in all persons, not even in all the good.
(a) Thus, those who are imprudent in their own affairs are not fitted to rule, and hence a man who is unjust, or intemperate, or cowardly, lacks political prudence: “If one knows not how to govern his own house, how will he be able to take care of the Church of God?” said St. Paul in discussing the qualifications of prelates (I Tim., iii. 5). He who does not know how to obey well does not know how to rule well.
(b) Those who have infused prudence on account of the state of grace are not necessarily fitted to govern, for even children have the grace of prudence through Baptism and there are many grown-up persons of saintly lives who are not a success in office and administration. Thus, Pope Celestine V, though a most holy man, resigned from the Papacy, because he felt himself unequal to the task of ruling in troublous times.
(c) Those who have acquired prudence through reason and experience, and who are therefore just, temperate and strong, are morally well fitted in natural endowments to rule. He who has learned to obey well is prepared to learn to rule well.
1649. Political prudence pertains to subjects as well as to rulers, although not in the same manner.
(a) Thus, rulers in the civil community should have political prudence in a supreme degree, or statesmanship, so that they may be able to discharge well the function of sovereignty entrusted to them, whether as legislators by deliberating wisely and choosing suitable laws, or as judges by correctly interpreting and applying the law, or as executives by maintaining the government and enforcing its laws.
(b) The citizens who exercise the power of suffrage should be gifted with no small degree of political prudence: they should be loyal to the institutions, laws, and welfare of the country, able to form a good judgment about men and measures that are the issues in a campaign, and ready to vote according to conviction rather than prejudice or personal interest.
(c) The people can also exercise political prudence when obeying the laws, as when they act from a sense of duty and as rational beings, not unwillingly or blindly; for thus they rule themselves as freemen and enlightened beings, deliberating and deciding with themselves how they may cooperate for the common good and directing their acts according to law.
1650. The principles just given concerning political prudence will apply also, due proportion being observed, to domestic prudence.
(a) Hence, it is the duty of those who have authority over a family or a similar community to cultivate domestic prudence, without which they cannot discharge rightly the duties of their position of parent, rector, superior, manager, etc. Confessors and directors of souls need especially to be prudent; for even though a priest is thoroughly grounded in the principles of a moral system of conscience and in the teachings of ascetical theology, he will have to be guided by prudence in making use of his knowledge, so as to apply it well in the great variety of cases that will come before him, and to decide what will be most useful for the spiritual welfare of each individual subject.
(b) It is the duty of those who elect or appoint others to positions of authority (such as the positions of guardian, teacher, superintendent, etc.) to be assured beforehand of the fitness of the person chosen as regards prudence, namely, that he is devoted to the welfare of those whom he will rule, that he has acquired sufficient knowledge and experience, and that his habits are temperate, resolute, just.
1651. Relations between Prudence and Other Virtues.--In the preceding paragraphs the possession of prudence has been joined with the moral virtues. Hence the question presents itself: Can one who lacks the moral virtues possess prudence?
(a) Evil prudence, which chooses ways and means well adapted to some nefarious scheme, and imperfect prudence, which means and judges well but does not strongly resolve, are of course found in sinners. Evil prudence is called after the virtue, because it is a counterfeit of the latter’s goodness, but it is more properly named astuteness or cunning. Its sinfulness is strongly expressed in Rom., viii. 6, which declares that the prudence of the flesh is death. Imperfect prudence is also sinful, for it permits a right judgment to remain ineffectual and is thus recreant to conscience. Examples of evil prudence are the unjust steward mentioned in the Gospel (Luke, xvi. 1), who was wise enough to cheat his master and serve his own interests, and artful swindlers who know how to lure their victims and then escape without detection. Instances of imperfect prudence are persons who deliberate well on the means to overcome assaults of temptation or to escape occasions of sin, but whose resolutions never last.
(b) Indifferent prudence is resourceful in finding ways to accomplish purposes that are good, but that are not necessarily referred to moral aims. Thus, certain men seem to have an uncanny instinct in business or industry of hitting on the methods that lead to success and of acting at the right time, and a similar fact is observed in the fields of science, medicine, art, etc. This kind of ability of knowing and doing the right thing is variously described as insight, discrimination, tact, and is variously explained as luck, genius, industry, etc. But, morally speaking, it is neither virtuous nor sinful, since we find, for example, that men endowed with business acumen or a practical sense of the uses of some art or science devote their talents sometimes to good, sometimes to evil, according to the difference of their characters.
(c) Good prudence is that which in thought and in act functions well with regard to the means for leading a good life. It is only this prudence that receives the name of virtue; and, since it is clear from its concept that it supposes a good life, we must conclude that the virtue of prudence is not found in sinners. It may happen, therefore, that a man is most sagacious in managing temporal affairs, or most skillful in administering the spiritual interests of others, and withal most imprudent, because he neglects his own salvation.
1652. Sins that Cause One to Forfeit the Virtue of Prudence.--(a) Infused prudence is lost by any and every act of mortal sin, whether the sin be against the knowledge had through faith or the knowledge had through reason. (b) Acquired prudence is lost by repeated acts of mortal sin opposed to the knowledge had through reason, but not by one sole act. Thus, a person who through experience and practice has become prudent in overcoming past vices, loses this prudence if he disregards the lessons of the past and exposes himself to the old dangers of mortal sin (see 138).
1653. We may sum up as follows regarding sinners and the possession of the virtue of prudence:
(a) sinners guilty of venial sin only have infused prudence, and also the habit of natural prudence, if they have acquired it by their own efforts;
(b) sinners guilty of mortal sin against supernatural light (e.g., those who sin against faith or hope) have not the infused virtue of prudence, though they may have the acquired virtue;
(c) sinners guilty of habitual mortal sin against natural light (e.g., those who are accustomed to sin against temperance or justice) have neither the infused nor the acquired virtue of prudence. Even one mortal sin, though it will not take away the inclination of the habit of prudence, will deprive one of the perfection of the virtue of prudence, for which it is required that in every act there be a judgment agreeable to a good will.
1654. The Virtue of Infused Prudence in Those Who Are in the State of Grace.--(a) Infants in the state of grace through Baptism possess this virtue in an habitual, but not in an actual manner--that is, on account of their sanctification they have the power, but on account of their want of reason they have not the use of the power.
(b) All adults in the state of grace have this virtue both habitually and actually, as far as the need of salvation requires its exercise. Grace enables them either to perceive what they should do to live well, or to seek counsel from the better instructed and to distinguish between good and bad advice.
(c) Some adults in the state of grace have good judgment in a superior degree and are able to direct not only themselves but others, and to deliberate and decide rightly, not only in matters necessary for salvation, but in all kinds of affairs pertaining to the direction of human life.
1655. Can the Acquired Virtue of Prudence Exist in Young People?--(a) If there is question of a formed habit of prudence, the virtue is not in the young, but in those who are advanced in years. Acquired prudence is originated by deliberation on particular cases and by habit, and these are not had without experience and time. Hence, this virtue is to be looked for in the elderly, both because the passions that disturb calm deliberation are no longer so impetuous in them, and because their years have taught them many lessons and given them the opportunity to acquire fixed ways of acting: “In the ancient is wisdom, and in length of days prudence” (Job, xii. 12; cfr. III Kings, xii).
(b) If there is question of a formative prudence, this is found in the young, for they deliberate and decide at times with judgment and firmness, and, if such acts are frequently repeated, they will eventually proceed from a settled moral inclination. It is necessary, therefore, that the moral training of the young begin early, that instruction, counsel and direction be given them by parents and other guides, so that the way of virtue may be made more easy. The young are in duty bound to listen frequently, willingly and reverently to the admonitions of their elders, and hence the modern tendency of youth to act as critics of morals is as foolish as it is presumptuous.
1656. Is There Such a Thing as an Instinctive or Native Prudence?--(a) If we speak of the knowledge of universal principles of right and wrong which are applied by prudence, those principles that are most general are known naturally (i.e., even without instruction or inference), but not so the less general principles that follow from them (see 320 sqq.). Broadly speaking, therefore, one might say that prudence is natural, for in respect of its first principles it has a natural evidence; but it is more correct to say that knowledge of first principles belongs to intuitive reason or understanding, which is also called synteresis in reference to practical truths (see 145), and which is a gift of nature.
(b) If we speak of the particular knowledge of virtuous aims that is presupposed to prudence, one may possess naturally a right judgment about those aims, inasmuch as the right objectives of human life are not variable but determinate, and accordingly may be the centers of attraction to nature, which is drawn to the invariable and determinate, as is seen in irrational creatures. In fact, certain persons are by nature disposed to certain virtues (e.g., temperance), and readily form accurate judgments as to what concerns these virtues. Broadly speaking again, we may say that prudence is natural in the sense that nature disposes some persons to judge rightly about moral ends.
(c) If we speak of the particular knowledge concerning ways and means to fulfill virtuous purposes, there is no natural knowledge of this kind, for the ways and means to moderation are infinitely varied according to the differences of affairs, persons, and circumstances. And since prudence strictly understood is concerned, not with universal principles or the ends of virtues, but with individual cases and the particular means to be employed, it follows that in the strict sense prudence is not natural. But just as we find that some men are better fitted by nature to judge correctly in speculative matters, so also some persons are superior to others in the ability to reason about practical cases and the means conducive to morality.
1657. The Growth and Decay of Prudence.--(a) As repeated acts form a habit of prudence, so do repeated acts strengthen prudence already formed, especially when the chief act of prudence (i.e., the command that things wisely deliberated on be performed) is often brought into play. Even infused prudence is augmented and perfected by use and practice: “Strong meat is for the perfect, for them who by custom have their senses exercised to the discerning of good and evil” (Heb., v. 14).
(b) As prudence consists primarily in a dictate which applies the reason’s knowledge to the control of will and conduct, this virtue is corrupted chiefly by passion. We see that those who are swayed by pleasure or pain lose sight of the true motive of choice and action, and do not issue to themselves the order which prudence and their better judgment inspire. Thus, lust deceived even the elders of the people (Dan., xiii. 56), and bribes blind even the prudent (Exod., xxiii. 8). Nature enables a man to judge rightly about the universal principles of right and wrong; but, when judgment is to be given about particular lines of action, “as a man is, so he judges,” the licentious man judging for pleasure, the cowardly man for neglect of duty. Hence, the moral virtues must be united with prudence, else it perishes.
(c) As prudence presupposes a fund of general moral principles, forgetfulness is an impediment to this virtue; yet not so that every loss of memory which deprives one of arts and sciences will also take away prudence. For, while art and science consist entirely of knowledge, prudence has also a moral element derived from a right inclination of the will towards goodness, and its chief office is the utilization of principles in practice. The virtuous man will continue to follow prudence, even though he has forgotten its theory or rules, guiding himself by good habits formed or by the counsel of those wiser than himself.
1658. The Gift of Counsel.--The Gifts of the Holy Ghost supplement the theological virtues by ministering to them; but they supplement the moral virtues, of which prudence is the first, by aiding and perfecting them. The Gift that corresponds directly to prudence is Counsel, for both are concerned with the direction of human acts, prudence directing by the standard of human reason and counsel by the Holy Ghost Himself.
1659. Definition.--Counsel is defined as “an infused habit which makes the soul prompt to receive and act upon the enlightenment offered by the Holy Ghost about the means to be chosen with a view to its own eternal salvation.”
(a) Counsel is different from the virtue of wise deliberation spoken of in 1646; for, while the virtue enables one to do good in a human manner and from one’s own motion (e.g., by seeking advice, by making inquiries, etc.), the Gift enables one to do good in a superhuman manner and under the motion of the Holy Ghost (i.e., by hearkening to the advice offered by God).
(b) Counsel is different also from the charism of good counsel, which makes certain persons remarkable as advisors or directors. Thus, Mathathias when dying said to his sons: “I know that your brother Simon is a man of counsel; give ear to him always, and he shall be a father to you” (I Mach., ii. 65). St. Antoninus of Florence was so successful in guiding those who came to him with their difficulties that he was called “Antoninus of the Counsels.” The Gift is intended to benefit its possessor, and it is therefore had by all the just; but the charism is for the benefit of others, and is freely bestowed according to the will of God only on certain individuals who have a special mission of directing or assisting their neighbors.
1660. Subject-Matter of Counsel.--The subject-matter of the Gift of Counsel embraces all that pertains to salvation, both the things that are necessary and are commanded and the things that are not necessary and are only counselled.
1661. The Gift of Counsel may direct one at times to courses that are singular and extraordinary. But, since the Apostolic rule is that one should not believe every spirit but should prove the spirits whether they are from God (I John, iv. 1; I Thess., v. 21), persons who feel called to unusual kinds of life should submit their ideas to the judgment of the Church: “Arise and go into the city, and there it shall be told thee what thou must do” (Acts, ix. 7).
1662. The Beatitude and Fruits that Correspond to the Gift of Counsel.--(a) Counsel directs one to all the means that are useful for the attainment of life eternal, but especially to acts of mercy, for, as St. Augustine remarks, without mercy shown to others we cannot be freed from our own evils. Cognate to Counsel, therefore, is the Fifth Beatitude: “Blessed are the merciful, for they shall obtain mercy” (Matt., v. 7).
(b) Counsel is practical, and hence its ultimate result will be action of some kind. The acts which its farseeing view puts especially into exercise are acts of mercy, and acts of mercy have sweetness and agreeableness when accompanied by a sympathetic love of the afflicted and a cheerful and generous service of their needs. There belong to mercy, then, the two delightful acts or fruits of the Spirit mentioned in Gal., v, 22, and called goodness (i.e., internal benevolence) and kindness (i.e., external beneficence).
1663. The Sins Against Prudence.--There are two classes of sins opposed to prudence. (a) Manifestly opposed to it are those sins that consist in a want of the acts or conditions requisite for prudence. These may be called sins of imprudence or sins that offend prudence by way of non-use. (b) Seemingly allied with prudence are those sins that consist in a wrong application of the acts or conditions of the virtue. These may be called sins of pseudo-prudence, or sins that offend against prudence by way of abuse. We shall speak first of imprudence and then of pseudo-prudence.
1664. Kinds of Imprudence.--There are three kinds of imprudence. (a) Negatively considered, imprudence is nothing more than the absence of prudence, and it is not necessarily a sin. Thus, children and young people through no fault of their own are negatively imprudent, though of course their lack of prudence may be traced back to original sin.
(b) Privatively considered, imprudence is the failure to have the habitual prudence that one is bound and able to possess. This failure is due to the fact that one has taken no pains to educate oneself through study, sermons, instructions, etc., so as to be able to act prudently when the occasion arises. Privative imprudence is therefore reducible to the sin of negligence, although negligence itself, as being opposed to carefulness (1634), is also against prudence, as we shall see.
(c) Contrarily considered, imprudence is the voluntary omission of some act or condition demanded by prudence (as when one is so taken up with amusements that one makes no effort to deliberate on an important matter or deliberates with undue haste), or the voluntary commission of an act exclusive of an act or condition of prudence (as when one expressly contemns deliberations or decides to act against the rules of prudence). This kind of imprudence is a mortal sin when it leads away from things necessary for salvation; otherwise it is a venial sin.
1665. Sinfulness of Imprudence.--Is imprudence a general sin, that is, a sin which is included in every kind of sin?
(a) Imprudence is not included in every kind of sin in the sense that it forms a part of the very nature of every kind of sin; for, just as prudence has its own special acts (i.e., to direct according to reason), distinct from those of other virtues, so has imprudence its own special defects that do not belong to other kinds of sin.
(b) Imprudence is included in every kind of sin in the sense that everyone who sins acts imprudently in sinning; for, just as one does not act virtuously unless prudence directs one, so one does not act sinfully unless there is some defect in the deliberation, or decision, or direction given by reason.
1666. It should be noted that, while the defects against deliberation, decision, and direction are so many different kinds of imprudence, they do not form species of sin distinct from the motivating sin if they are all directed to one evil purpose. Hence, if a person has deliberated badly, decided badly, and directed badly in the matter of striking a priest, he needs to confess but one sin, namely, that of laying sacrilegious hands on a cleric.
1667. The Sin of Haste.--The sin of haste or precipitancy passes over or hurries over the processes of deliberation that ought to precede action; it devotes little or no attention to memory of past experiences, understanding of present conditions, or conjecture of future possibilities; it does not give to a question the proper amount of study or of consultation. It is of two kinds, ordinary and rash.
(a) Ordinary precipitancy results from a strong inclination of the will or of the passions, as when a person speaks in anger before he has thought of the serious consequences of his words, or marries without reflection, or purchases an article the worth of which he does not know, or agrees to something about which he is in the dark, etc. Both Holy Writ and popular proverbs strongly condemn this sin.
(b) Rash precipitancy results from contempt of the law, as when one so despises an ordinance as to violate it without the slightest hesitation or reflection. This sin pertains to pride as well as to imprudence. In various censures the word “rashness” or “temerity” is used as here given, as when excommunication is pronounced against rash violators of the law.
1668. The Sin of Thoughtlessness.--The sin of thoughtlessness or inconsideration is a neglect or contempt of the means of arriving at a wise decision. It is a failure, therefore, to make use of right understanding, which looks well at the particular case before it and studies and measures it in the light of first principles.
(a) He is guilty of thoughtlessness, then, who fails to do what he can to judge rightly about his duty; nor is he excused if he leaves the whole matter to God, for it is temptation of God to expect that He will provide when man does not do his own part (Prov., iv. 25).
(b) He is not guilty of thoughtlessness who has not the opportunity of judging, or who lacks sufficient knowledge, or who is taken unawares; nor is he guilty of temptation of God, if in such difficulties he commits all to Providence. Thus, when various nations were gathered together to fight against Juda, King Josaphat prayed: “As we know not what to do, we can only turn our eyes to Thee” (II Par., xx. 12). And Our Lord promised special help to the disciples for cases of need when they were unable to help themselves (Matt., x. 19).
1669. The Sin of Inconstancy.--The sin of changeableness or inconstancy is committed when, owing to anger, jealousy or other inordinate passion, the reason repudiates things that had been rightly decided on and fails to act on judgments that had been rightly made (Is., xxxvii. 3). From inconstancy result incontinence (i.e., instability in the face of pleasure) and effeminacy (i.e., instability in the face of sadness).
1670. Causes of the Sins of Haste, Thoughtlessness, and Inconstancy.--(a) Every inordinate desire brings on these sins by diverting the mind from a good to an evil object. Experience shows that the avaricious, the ambitious, the angry, the jealous, etc., do not listen to reason, but act imprudently: “Where envying and contention is, there is inconstancy” (James, iii. 16).
(b) Desire of pleasure, especially of venereal pleasure, is most fatal to prudence by extinguishing the judgment of reason. The intellect is immaterial and is occupied with abstract truth, whereas sensual delights are immersed in the material and sensible. Hence, carnal sins are more injurious to prudence than spiritual sins. The sensual man not merely does not listen to reason, but he does not even hear it. Venus steals away the reason, said Aristotle, and this truth is well exemplified in King Solomon.
1671. The Sin of Negligence.--The sin of negligence is opposed to carefulness or diligence, and consists in the failure of the reason to direct properly an act, or some circumstance of an act, to which one is obliged.
(a) Negligence is a general sin in the sense that it has no special matter of its own, such as a passion to be moderated (as is the case with temperance and fortitude) or an action to be regulated (as is the case with justice). The acts of reason should extend to every kind of matter, and hence a person may be negligent (and likewise inconstant, thoughtless, hasty) with reference to any kind of action or passion.
(b) It is properly a special sin, as being the opposite of carefulness, which is a special act of prudence.
1672. Negligence is distinct from the following sins: (a) from laziness and lukewarmness, which are defects of the external act, while negligence is a defect of the internal act (see 1326, 1327); (b) from sins of omission, which pertain to external acts and are results of negligence, and are opposed to some other virtue than prudence (e.g., negligence in paying debts is against justice); (c) from inconstancy, which fails to command an act to which one is bound, as though one were impeded, while negligence fails because there is a want of promptness in the will. The inconstant man is easily diverted from his course; the negligent man is slow in getting under way.
1673. The Sinfulness of Negligence.--(a) It is a mortal sin when some act or circumstance necessary for salvation is omitted on its account (e.g., when a debtor puts off from day to day the payment of a bill, and in consequence causes a great injury), or when it proceeds from contempt or preference of the creature to God. (b) It is a venial sin when the act or circumstance omitted is not necessary for salvation (e.g., when a judge causes a slight injustice by reason of his procrastination), or when it proceeds from a want of fervor.
1674. False Prudence.--So far we have considered the sins of imprudence; now we shall speak of the sins of false prudence, which turn to wrong objects the acts that prudence employs for good, or which use inordinately the care that prudence employs in moderation. Thus, there are several kinds of imitation-prudence.
(a) Prudence is in love with the good of virtue as the end of life; the prudence of the flesh is in love with some pleasure or utility, and makes this good the center of attraction for all its acts.
(b) Prudence deliberates and judges about good and lawful means for its end; astuteness deliberates and judges how it may make use of evil means, and it employs trickery and fraud to perform what it decides on.
(c) Prudence is chiefly concerned about the spiritual, but its concern is not excessive; solicitude for temporal things or for the morrow is more anxious about the things of this world, or is unduly anxious about spiritual things.
1675. The prudence whose end is bad is the sin of those Who counsel, judge, and direct well as to the means for securing temporal goods which they have made the supreme purpose of their lives. This sin is given the one general name, “prudence of the flesh,” from Rom., viii. 6, where the aspirations of the flesh are contrasted with the aspirations of the spirit. But it is also sometimes distinguished according to the different kinds of created things in which false prudence puts its desire, or according to the different kinds of allurements to such created goods.
(a) Thus, those who aim chiefly at internal goods (i.e., bodily pleasures, health, etc.) are said to have the prudence of the flesh, while those who long mostly after externals (such as fine clothes, jewelry, estates, etc.) are said to have the prudence of this world: “The children of this world are more prudent in their generation than the children of light” (Luke, xvi. 8).
(b) We may also divide prudence about a wrong end into earthly, animal and devilish, according to the threefold source of temptation, as was explained above in 1623.
1676. Sinfulness of the Prudence of the Flesh.--(a) If prudence of the fiesh be understood in its stricter meaning as designating the condition of those who make the things of this world the be-all and the end-all of existence, it is a mortal sin; for it is impossible that one should have two last ends or serve two masters whose interests are opposite: “The wisdom of the flesh is an enemy to God, for it is not subject to the law of God, neither can it be” (Rom., viii. 7).
(b) If prudence of the flesh be taken in a less strict sense as signifying the behavior of those who make God the supreme end of their lives, but who in some affair plan shrewdly for a particular end that does not entirely square with right reason, it is then a venial sin. An example is a host who is very practical in buying supplies and making all the arrangements for a banquet at which the guests will conduct themselves with too much hilarity.
(c) If prudence of the flesh be used in a wide or improper sense as signifying the care of the body and other temporal things for the sake of a good end, it is not sinful, but virtuous. Thus, a person who is careful about his diet in order that he may conserve his health and be enabled to work more efficiently and fruitfully, is virtuously prudent. The use of the term “prudence of the flesh,” for these last two cases is inaccurate and misleading.
1677. Astuteness, Trickery and Fraud.--The prudence whose means are bad is the sin of those who skillfully plan and carry out wicked ways and methods of securing some desired end, even though it be a good end.
(a) The planning of wicked means through which some design can be successfully achieved is the sin of astuteness, and the persons who are well-fitted for such things are known as schemers and plotters. The counsel of the Jews against Christ (Matt., xxvi. 3-5) and the bribery of the sepulchre guards (Matt., xxviii. 12-14) are examples of astuteness.
(b) The carrying out of astute plans may be done either by violence or by stealth; but, as evil loves to hide itself and to pose as good lest its success be endangered, schemers usually resort to trickery and fraud. Lord Bacon’s essay on “Dissimulation” is a good description of the method of worldly policy.
1678. Trickery in general is the secret employment of sinful means with the view to impose on others and thus gain some advantage one has in mind. Hence, it has a wide application and includes fraud as well as other uses of unlawful means. But trickery may be distinguished from fraud as follows:
(a) trickery is the execution of an astute plan by words calculated to deceive or circumvent another person. Words are the chief means of communication between men, and hence trickery is more usual than fraud. Examples of trickery are the artful traps prepared for Our Lord by the Pharisees when with apparent respect they asked His views about the condemnation of the adulteress (John, viii. 3 sqq.) and the payment of tribute (Matt., xxii. 17), their purpose being to obtain evidence that He spoke against the Law;
(b) fraud is the execution of astute plans by means of dishonest actions, as when a person cheats by not observing the rules of a game, or defrauds by selling inferior goods, or imposes on others by passing himself off as their friend, etc.
1679. Trickery may be used for good as well as evil ends, and thus St. Paul disowns the practice of persuading men to embrace the Faith by appealing to their prejudices or by toning down the Gospel: “We renounce the hidden things of dishonesty, not walking in craftiness, nor adulterating the word of God; but by manifestation of the truth commending ourselves to every man’s consciousness in the sight of God” (II Cor., iv. 2).
1680. The gravity of the sins of astuteness, trickery and fraud depends on the character of the object, end and circumstances. (a) Thus, on account of the object the sin is grave when the means chosen are very bad (e.g., serious calumnies), venial when the means are slightly evil (e.g., lies about unimportant matters); (b) on account of the end the sin is mortal when one intends to perpetrate a serious offense (e.g., clever ruses to get into a house in order to rob it), venial when the purpose is not so bad (e.g., cheating at cards in order to win a small sum); (c) on account of the circumstances the sin is made mortal by some grave defect or disorder in the act resulting from the condition of time, place, person, etc. Thus, there might easily be great scandal if a person of authority were known to lie habitually, as it suited his interests.
1681. Solicitude.--Another form of spurious prudence is solicitude, that is, an inordinate carefulness about temporal things or about the future. Its sinfulness appears from the following considerations.
(a) Our Lord condemns solicitude: “Be not solicitous therefore saying: ‘What shall we eat, or what shall we drink, or wherewith shall we be clothed?’ ... Be not solicitous for the morrow, for the morrow will be solicitous for itself. Sufficient for the day is the evil thereof” (Matt, vi. 31, 34).
(b) Solicitude seeks temporal things without the moderation that reason requires, does not duly esteem the spiritual, and does not confide in Divine Providence. Without any human care God bestows upon man the gift of life itself, provides for the animals and plants, directs the whole inanimate creation, and it is therefore unreasonable to fret and fume over the temporal things of one individual as if God were unable or unwilling to see to them (Matt, vi. 25 sqq.).
1682. Cases of Unlawful Solicitude about Temporalities.--(a) Solicitude is sinful on account of the things sought if one makes temporal things the end of life, as when a person follows religion purely as a business matter, for the sake of the living and worldly advantages this secures.
(b) Solicitude is sinful on account of the immoderate desire of obtaining some good, when one pursues the temporal with such avidity that the spiritual is made to suffer, as when a person devotes so much time and thought to business, politics, society or science that religion is more and more set aside in his life: “The cares of this world choked up the word” (Matt., xiii. 22).
(c) Solicitude is sinful on account of the immoderate fear of losing a temporal good, when one is deterred from religion by the thought that fidelity to virtue means the sacrifice of the necessaries of life. Examples of this immoderate solicitude are persons who never attend church or contribute to religion, lest they lose time or money, or who practise race-suicide to escape the burden of supporting a family.
1683. Cases of Lawful Solicitude.--(a) When the end is a genuine temporal good, moderate solicitude is not only lawful but is a duty dictated by prudence. Thus, a man who labors industriously and who saves, spending economically for the support of himself and his dependents and the upkeep of his home and business, is prudent in the true sense of the word, provided he is not too much absorbed in money-making or too anxious about financial affairs: “Work must be attended to, but worry must be banished” (St. Jerome).
(b) When the end is a spiritual one, moderate solicitude is also a duty. Thus, St. Paul was solicitous for his Churches (II Cor., xi. 28), Timothy for the Philippians (Phil., ii. 20); those who have charge as almoners should be solicitous for the goods given for the poor, etc.
1684. Cases of Unlawful Solicitude about the Future.--(a) Solicitude is unlawful on account of the end that is intended, when one makes temporal things one’s god, and is therefore perturbed about the future, as when a person has set his heart upon obtaining some honor by fair means or foul, and is restless and disturbed in mind lest it escape him.
(b) Solicitude is unlawful on account of immoderate desire, when one seeks for more than one should, as when a person who has sufficient means busies himself about too many things and deprives himself of peace and health in order to be wealthier in the future.
(c) Solicitude is unlawful on account of the unsuitability of the time, when one anticipates the season for care, as when a farmer worries during planting season about the harvest, and during harvest time about the next planting. Those who willingly occupy and disquiet themselves with forebodings of dire calamities that are uncertain (e.g., the imminent destruction of the world) or of evils that cannot be prevented (e.g., their death), are also guilty of sinful solicitude.
1685. Cases of Lawful Solicitude about the Future.--(a) When the end is a lawul temporal good, moderate solicitude about the future is good, for providence for the future is a part of prudence (see 1654). Scripture praises the ant which gathers its food in the summer against the winter (Prov., vi. 6). Joseph stored up a reserve of grain (Gen., xii. 34 sqq.); Our Lord appointed Judas to act as treasurer for Himself and His followers (John, xii. 6); the Apostles kept for future expenses offerings made from the sale of fields (Acts, iv. 34, 35). (b) When the end is spiritual, reasonable solicitude is also good, and this is seen in the conduct of the early Christians who gathered alms in advance that they might have the means to bestow assistance during a famine which had been predicted (Acts, xi. 27 sqq.).
1686. False Prudence and Avarice.--The sins of false prudence are caused chiefly by avarice. (a) They are sins in which reason plays a great part, though it is not put to a good use; and hence they do not naturally spring from carnal vices or cowardice, which obscure reason. Avarice, on the contrary, reasons much on how it may get and keep; it is shrewd, cunning, deliberate, foresighted. (b) They are sins that have recourse to stealth and secrecy, and thus are unlike pride, vainglory, and anger, which incline to display and openness. But avarice puts utility above considerations of glory or revenge, and prefers to be without fame or to bear with slights rather than lose profits.
1687. Commandments of Prudence.--Prudence is not expressly commanded in the Decalogue, but there are precepts concerning this virtue in other parts of Scripture.
(a) Prudence is not enjoined in the Decalogue, because the ten commandments are concerned with those ends of virtue that are manifest to all, whereas prudence is about the means to practise virtue.
(b) Prudence is commanded in many places of Scripture: “Get wisdom and with all thy possession purchase prudence” (Prov., iv. 7); “Walk in the ways of prudence” (ibid, ix. 6); “Purchase prudence, for it is more precious than silver” (ibid, xvi. 16); “Be ye prudent as serpents” (Matt., x, 16); “Speak the things that become sound doctrine, that the aged men be sober, chaste, prudent” (Tit., ii. 1, 2); “Be prudent and Watch in prayers” (I Peter, iv. 7).
Art. 2: THE VIRTUE OF JUSTICE
(Summa Theologica, II-II, qq. 57-60.)
1688. After prudence follows justice. This virtue regulates human actions and renders to others their due, and so it has preeminence over fortitude and temperance, which govern the passions and make man virtuous as regards his own acts only and not as regards his neighbor. The logical order, then, is that justice should precede fortitude and temperance.
1689. Nature of Justice.--In God justice is an attribute in virtue of which He so treats His creatures that they can have no well-founded complaint against Him: “His own justice supported Him. He put on justice as a breastplate” (Is, lix. 16, 17). In man it is goodness towards God or towards neighbors; and it is called in Scripture by various names, such as “justice,” “equity,” “truth,” “righteousness.”
(a) In a wide sense, justice signifies the general virtue of holiness, or the collection of all the virtues, as when Our Lord says: “Blessed are they that hunger and thirst after justice (i.e., holiness)” (Matt., v. 6). Holiness, as a supernatural life communicated to the soul, is also called justice or justification: “The justice of God by faith of Jesus Christ, unto all and upon all them that believe in Him” (Rom., iii. 22).
(b) In a strict sense, it signifies the special moral virtue that consists in a firm purpose of the will to give to everyone his due or right: “Love justice, you that are judges of the earth” (Wis., i. 1); “If in every deed you speak justice” (Ps. lvii. 2). In its strict sense the word “justice” is hereafter used.
1690. Definition of Right.--Right signifies originally that which follows a straight course or does not deviate from the true standard, as in the expressions “right ahead,” “to be in the right.” But in moral matters right has the derived meaning of that which is good, proper, suitable; and in general it is of two kinds, objective and subjective, the former being the foundation of the latter.
(a) Objective right is that which is prescribed by law, or it is the law itself as the rule and standard of what ought to be done, especially in the relations of men towards one another. In this sense there is a twofold right, natural and positive, according as reason itself or free will imposes a law (see 286, 296).
(b) Subjective right is that relationship introduced between men by reason of the laws governing their conduct one to another, which gives to one an authority to exercise certain capabilities (active right, right properly so-called), and imposes on another the necessity of respecting that authority (passive right, duty).
1691. Right properly so called is defined as the moral power of doing or possessing something.
(a) It is a moral power, that is, a power created by the moral law giving one a true title and forbidding others to interfere with its enjoyment and use. It is not a physical power, for might does not make right; on the contrary, he who has moral power is sometimes hindered from exercising it by another who has physical power. Nor is it a mere legal power, or capacity to act validly and within human law, but an ethical power that enables one to act licitly before God and conscience.
(b) It is a power to do (e.g., to labor) or to have (e.g., to own land). The former includes also the moral power to forbear action (e.g., to rest on Sunday), to require that another act (e.g., pay what he owes me), or that he forbear action (e.g., keep off my property); while the latter includes also the power to acquire, to use, to transfer, etc.
1692. Divisions of Right.--(a) By reason of its source, or of the law from which it springs, a right is either natural (e.g. the right to life, liberty, pursuit of happiness), positive-divine (e.g., the right to receive the Sacraments), positive-human (e.g., the right of parishioners that Mass be said for them by their pastor, the right of citizens to vote and to be voted for). (b) By reason of its term, or of the power which it confers, a right is strict (legal) or non-strict (moral). One has a strict right when something is due one, because it is one’s own by a proper and exclusive title (e.g., the right to life and property). One has a non-strict right when something is due one, only because it is something common that is to be distributed and one is a deserving member of the community (e.g., the right to receive an appointment from the government), or because virtue (e.g., the right to receive gratitude for benefits shown) or the perfection of virtue (e.g., the right to be treated with liberality or affability or friendship by others) requires it.
1693. Natural rights are subdivided as follows:
(a) in respect of their object, some rights are absolute, as being based on nature alone (e.g., the right of a child to support from its parent arises from natural origin); or they are relative, as being based on nature in its relation to concrete and contingent facts (e.g., the right of an owner to private possession of his land arises from the nature of land, which was made to serve man, and from the contingent fact that it cannot serve man as a rule without private ownership);
(b) in respect of their source, some rights are innate, that is, they are had from birth by the very fact of human nature (e.g., the right of life in the newborn child); others are acquired, that is, obtained in course of time through some contingent fact. Thus, titles to goods of fortune which the owner is the first to possess (original titles) are obtained by occupation and accession; titles to goods obtained from others (derivative titles) are obtained through prescription, inheritance, contract;
(c) in respect to their firmness, some rights are alienable, that is, they are such as may be renounced or superseded lawfully, since they are not obligatory (e.g., the right to marry, the right to drink alcohol); while others are inalienable, that is, not subject to renunciation or deprivation, as being obligatory (e.g., the right to repel temptation, the right to serve God).
1694. Signs by which Strict and Non-Strict Rights May Be Distinguished.--(a) That to which one has a strict right belongs to one as one’s own, and hence it must be determinate or determinable. The right of a beggar to receive some assistance from someone is not a strict right, since it cannot be urged against any particular thing or any individual person; but the right of a creditor is a strict right, since it can be urged against the debtor for a definite amount.
(b) That to which one has a strict right is owed in justice, and hence it may be enforced by legal means, or in case of need by physical force. The right of a child not to be slighted in the distribution of presents made by its parents, the right of a person who has had a falling out with another that the latter shall accept advances for a reconciliation, and the right of a benefactor that the beneficiaries show signs of gratitude, are not strict rights, because they cannot be enforced in courts of justice, but the right of a laborer against his employer is a strict right, since it can be vindicated by legal means. It should be noted that a strict right is one that is granted as a proper, exclusive and enforceable power by any law, whether natural or positive, and hence the fact that human law will not vindicate a right (e.g., the right arising from a contract naturally good, but legally not defensible, the right of a parent to his child’s respect) does not prove that the right is not strict.
1695. A strict right to have or to own is either in re or ad rem. (a) A right in re (real or complete right) is the right to that which one already lawfully has as one’s own (e.g., the right that Caius has to the wages paid him by Balbus). (b) A right ad rem (personal or inchoate right) is the right to that which one is entitled to obtain as one’s own (e.g., the right that Caius has to receive the wages promised him by Balbus).
1696. Legal Enforcement of Strict Rights.--(a) The right in re authorizes recourse to a real action (actio in rem), that is, to a suit against the thing itself, no matter where it be or by whom it be held, as when one sues to recover one’s property through the ejectment of a wrongful possessor; for the thing is immediately and juridically bound to him who has the right, as being his own.
(b) The right ad rem enables one to enforce one’s claim by a personal action (actio in personam), that is, to bring a suit against a definite person on whom one has a claim by reason of contract, domestic relationship, fiduciary position, etc., as when one sues for recovery on account of the non-fulfillment of the conditions of a compact.
1697. The right in re to property is either perfect or imperfect.
(a) A perfect right (right of full dominion) is that which enables one to exercise all the prerogatives of ownership, that is, to dispose at will of an object (e.g., to sell, lend, give away, etc.), to use it (e.g., to occupy a house, to make alterations in it, to tear it down, etc.), and to exclude others (e.g., to put a fence about one’s property to exclude the public).
(b) An imperfect right (right of partial dominion) is had when one is restricted as to the right of the disposition of one’s goods, for example, when one is forbidden to sell; or when one has the right of disposition without the right of use, for example, when one is forbidden on account of the vows of religion to use property one owns (radical dominion); or when one has the right of use without the right of disposition, for example, when one is forbidden to make permanent alterations in a house one occupies as tenant (indirect or useful dominion); or when one has the other rights of ownership but lacks the right of exclusion, for example, when one may not exclude a neighbor’s flock from grazing in one’s pasture (ownership subject to servitude).
1698. The Subject of Justice, or the Faculty of the Soul in Which It Exists.--(a) Justice is not in the intellect, for we are not called just because we know a thing rightly, but because we act rightly; (b) nor is it in the sensitive appetite, since a sense faculty does not apprehend the relations between rights and duties; (c) hence, justice is in the rational appetite or will.
1699. The Objects or Subject-Matter of Justice.--(a) The material object of justice (i.e., all those things with which it deals) is remotely the external things which are the objects of exchange and distribution among men, and proximately the actions by which they are exchanged or distributed.
(b) The formal object of justice (i.e., that which it principally intends in dealing with its material object) is that the rights of others, or their inviolable moral power of doing, having or acquiring, may be respected. Justice thus differs from charity. For charity is owed also to self, justice only to the neighbor; charity considers the neighbor as he is one with self and gives him what belongs to self, while justice considers the neighbor as he is distinct from self and gives him what belongs to him.
1700. Since justice is shown not to self but to another, it is not so fully-realized when two persons are in some sense one.
(a) Parent and child are especially one, since the child is from the parent and a part of the parent, and hence the natural obligations that spring from their special relationship pertain to the virtue of filial and paternal piety, which is not strictly justice, but obliges more strictly on account of the greater rights involved. But obligations that spring from relationships that are common (e.g., from a contract between a father and his son) pertain to strict justice; for in these relationships they treat with one another, not as father and son, but as man and man. Employer and employee may also be considered as one, inasmuch as the latter is the agent or instrument of the former, and the same conclusions may therefore be applied to them.
(b) Husband and wife are less perfectly one than parent and child and than master and servant, for neither is descended from the other, and neither is servant to the other. But since they form one conjugal society and the husband is head of the wife, they owe one another stricter obligations than if they were strangers to one another, although those obligations partake less rigorously of the character of justice.
1701. Division of Justice.--Justice is divided according to the rights it respects into legal and particular. (a) Legal justice (observance of law) is that which is owed by the individual, whether he be ruler or subordinate, to the community of which he forms a part, or to the law and the common good of the entire body. (b) Particular justice (fairness) is that which is owed to the private good of an individual.
1702. Is legal justice a distinct and separate virtue, or only a general condition found in all virtues?
(a) Practically speaking, legal justice is a general virtue, inasmuch as its desire of promoting the common good will impel a man to observe all the laws and to practise other virtues than justice, such as fortitude and temperance. The law commands us to perform the actions of the courageous man, of the temperate man, of the gentle man, and hence, as Aristotle says (Ethics, lib. V, cap. 2), legal justice is often regarded as the supreme virtue, the summary of all virtue, more glorious than the star of eve or dawn.
(b) Essentially, it is a distinct virtue, for it alone moves a man primarily and directly to respect the rights of the common good as being that greater whole of which the individual is but a part. It differs even from patriotism and filial piety (for these are moved by one’s own debt to the source of one’s life) and from obedience (for legal justice seeks the welfare of the community even in things that are not commanded).
1703. Comparison of Legal and Particular Justice.--(a) Particular justice partakes more of the nature of justice, for there is a greater distinction or separation between the party who has an obligation and the party who has a right, when the latter is an individual, than when the latter is a whole of which the former is a part. A distinctive characteristic of justice, as said just above, is that it takes account of the independence or “otherness” of those between whom it exists, so much so that only in a metaphorical sense can we speak of justice when only one person and nature is in question (e.g., justice between man and his soul, body, powers).
(b) Legal justice is a more perfect virtue than particular justice or filial piety, since it seeks a higher object (that is, the common good as such) and is more voluntary.
1704. Is the right which the community has to receive from the goods of its members one of legal or one of particular justice?
(a) The right of eminent domain (i.e., the right which the State has over the goods of private persons when they are necessary for the common good) is a right of legal justice, for even without compulsion the citizen should be willing to contribute what is necessary for the community of which he is part.
(b) The right of the members of a government to receive compensation for their services is a right of particular justice, for there is an implicit contract between the rulers and the State that the former will serve the interests of the latter and that the later will pay the expenses of the former, as if both parties were private individuals (see 1708).
1705. Distributive and Commutative Justice.--On account of the inequality or equality of the individuals between whom it exists, particular justice is subdivided into distributive and commutative, which are distinct species of justice.
(a) That the distinction is well-founded is proved by the fact that this justice--that is, relations towards particular persons--is either the relation of whole to part or of part to part. The former relations are governed by distributive justice, which is defined as the virtue that inclines the ruler, as the representative of the community, to portion out the public goods (e.g., money, honors, offices) and burdens (e.g., taxes), not according to favoritism or personal likes, but according to merits and abilities; the latter relations are governed by commutative justice, which is defined as the virtue that inclines the individual to pay to other individuals what is their due, whether the rights be personal (e.g., the right to reputation) or real (e.g., the right to wages or price). Commutative justice receives its name from the fact that it is oftenest called for in commutations (i.e., in exchanges, such as buying and selling).
(b) That the distinction of particular justice into distributive and commutative is specific appears from the fact that the main characteristics of justice (viz., debt owed another and equality between payment and debt) are found in each of these kinds of justice in a way proper to itself. There is a debt in commutative justice when a thing is owed another because he has an individual right to it and it is already under his dominion; there is a debt of distributive justice, when a thing is owed another because he has a community interest in it and a right that it be entrusted to him in view of his merits or abilities.
1706. Thus, the equality observed in commutative justice is arithmetical, or of quantity (e.g., if a horse is worth $100, it is just to pay $100 for it); the equality observed in distributive justice is geometrical, or of proportion (e.g., if one who had an average of 90% in a civil service examination receives a position that pays $90, it is just to give another whose average was 80% a position that pays $80). An indication of the specific difference between distributive and commutative justice is that the same individual may be just in private matters and unjust in public matters. Example: Titus, an office-holder, pays his personal debts faithfully, but he appoints only his friends, whether they be worthy or unworthy, to important honors.
1707. Corrective Justice.--Corrective (i.e., vindicative or punitive) justice is a virtue inclining a public person or a superior, such as a ruler, magistrate, or judge, to inflict on evil-doers penalties adequate to their faults. It is not to be confused with just vengeance or retaliation, which is the virtue that moderates in a private person the desire for punishment of an offense against self, and which is not justice strictly speaking, either commutative or distributive, but only a potential part of justice (as stated below in Article 6).
(a) Thus, corrective justice is elicited by commutative justice, for a punishment is inflicted by a judge in order that there may be equality between the satisfaction made by the evil-doer and the debt owed to another on account of the offense. It aims at redressing an unfairness by taking away so much from the offender and adding so much to the party offended, that both will stand in the same position as before. If the person punished accepts the penalty in the same spirit, he also practises commutative justice.
(b) Corrective justice may be commanded by legal justice, for the judge may intend the punishment for the sake of the common good, as well as of the individual who has been injured.
1708. Different Species of Justice in One Act.--Different species of justice may be present in one and the same act. (a) The same act may be elicited by one kind of justice and commanded by another kind of justice (see 56 sqq.), as in the examples given just above of vindicative justice. (b) The same act may be elicited by two kinds of justice, as when a debt is owed both in virtue of commutative and of distributive justice. Some think an example of this is found in the payment of government employees, for payment is made by distribution from common funds (distributive justice), and it is owed for services contracted for (commutative justice). But it seems more correct to say that wages for services given the community are due in commutative justice rather than in distributive justice; for in the former justice equality is between what is given and what is received, in the latter between the proportion received by one and the proportion received by another, and government salaries should be paid on the basis of value received in service (see 1704, 1755, 1767).
1709. The Object of Justice.--The function of a moral virtue is to direct according to moderation all those things that are subject to the free will of man, and can be regulated by reason, namely, the actions of man and the external things of which he makes use.
(a) The actions of man can be understood either in a wide sense, so as to include both those internal affections that are accompanied by notable bodily changes (the passions, such as anger, sadness), and those actions that do not so strongly act upon the body (operations). Every virtue has for its object action in the wide sense, for virtue is defined as a habit that makes the agent good and his action good; but not every virtue has action in the strict sense for its object, since the virtues of fortitude and temperance regulate, not the operations, but the passions.
(b) Operations are of two kinds, namely, internal, by which men do not communicate with one another (such as thoughts and desires), and external, by which men communicate with one another. These latter either have to do with external things (such as land, houses, money, produce, etc.), and we then have such operations as loan, sale, lease and other contracts, or no external thing is introduced, and we have such operations as honor, praise, calumny, etc. All the moral virtues have to do with the internal operation of choice, for virtue is a good election of the will; but there is this difference between justice and the other moral virtues, that fortitude and temperance merely dispose the intellectual appetite for a good choice by the regulation they give to the sensitive appetite, while justice has for its proper act to choose well the means for moderating external operations. As for external operations themselves, these are the objects of justice, but not of the other two moral virtues.
1710. The purpose of the other moral virtues is to regulate man in himself; for the passions that are moderated by fortitude and temperance (such as fear and desire) affect primarily their subject and not other persons. The purpose of justice, on the contrary, is to regulate man in his relations to others; for external operations and things directly affect others, either helping or injuring them, But both the passions and external operations have effects and consequent ends that give them new relationships, and hence we may distinguish between the primary object to which a virtue tends directly, and the secondary object to which it tends only indirectly on account of the effects of the primary object.
(a) The primary object of justice is external operations and external things; the primary object of fortitude and temperance is the passions, for justice seeks the good of others, whereas fortitude and temperance seek the good of the agent.
(b) The secondary object of justice is the passions, whenever its principal object cannot be easily regulated without regulation of the passions. Thus, when lust urges to the injustice of adultery or avarice to the injustice of denial of payment due, justice calls on the virtue of temperance or liberality, as the case may be, to moderate the passion opposed to it. Similarly, the secondary object of fortitude and temperance may be external operations, whenever the effect on the subject of the principal object (i.e., the passions) has reactions in reference to other persons. Thus, if fear is moderated by fortitude and desire by temperance, these virtues have external consequences such as combat against evil, abstinence from food or drink that belongs to others; but if anger is immoderate, it may lead to unjust attack, and if desire is immoderate, it may lead to the injustice of theft of food or drink.
1711. The Golden Mean of Virtue.--The golden mean of virtue is not the same in all the moral virtues (see 154).
(a) Thus, fortitude and temperance regulate the passions for the benefit of their subject, that he may avoid in them the extremes of excess and defect. Hence, the middle way they follow must be determined by reason from a consideration of the subject and his circumstances (the mean of reason), and so will vary with different subjects and with individual cases. Thus, in the matter of temperance it is an old saying that what is one man’s meat is another man’s poison. It would be absurd to say, therefore, that there is only one middle way of temperance, and that all persons must conform to the same rule as to quality and quantity of food and the time and manner of eating and drinking. On the contrary, the rule here must suit the subject, and that will be moderate which agrees with the health, appetite, duties, manner of life, etc., of the person.
(b) Justice, on the contrary, regulates external operations for the benefit, not of the subject, but of other persons whom they affect, in order that the subject in dealing with others may avoid inequality, which means excess on one side and defect on the other side. Hence, the middle way of justice is discovered by reason from a consideration of external things or acts owed to other persons (the mean of reason and of the thing), and so it does not vary with the circumstances of the subject. If the real value of a horse is $100--it makes no difference whether the seller be a prince or a peasant, whether the buyer be rich or poor--the just payment will be $100. Excess will be unfair to the buyer, deficiency to the seller.
1712. Though the mean of justice is determined, not by reference to the person who acts, but by reference to some external thing, it may be that this external thing cannot be evaluated without consideration of the person to whom justice is owed.
(a) In distributive justice this is always the case, for the mean of the thing in distributions consists in equality between relative proportions of distributions and relative merits or abilities of persons to whom distributions are made. Hence, distributive justice must consider the conditions of the person to whom it is owed as compared with the conditions of other persons, in order to observe equality by giving proper shares to all.
(b) In commutative justice, this is sometimes the case, namely, when the condition of a person who has been offended (e.g., that he is a ruler) increases the debt of satisfaction that is owed him; for the mean of the thing in commutative justice is equality between the payment and the debt.
1713. Is observance of the mean of the thing sufficient to make an act just, no matter what may be the dispositions of the subject?
(a) If there is question of material justice, the reply is in the affirmative, for a virtue is said to be exercised materially when its mean is observed. The mean of fortitude and temperance cannot be observed without reference to the condition of the subject (e.g., he is not brave who undertakes a difficult task that is beyond his strength); but the same is not true of justice (e.g., he is just who pays the last penny of a debt though the payment was beyond his means and required a sacrifice).
(b) If there is question of formal justice, the reply is in the negative, for a virtue is said to be exercised formally (i.e., from a virtuous habit) when the motive of the subject and the circumstances are agreeable to reason. Thus, he who performs deeds of valor purely out of vainglory exercises fortitude materially, not formally; and likewise he who pays his debts faithfully, merely in order to avoid the penalties of the law, exercises justice materially but not formally.
1714. Comparison of Justice and the Other Virtues.--The differences between particular justice and the other moral virtues are, therefore, the following:
(a) justice is for the good of another, the other virtues for the good of the agent himself;
(b) justice deals with external actions and things, the others with the passions;
(c) justice follows a mean of the thing, the others a mean of reason;
(d) justice is had materially without any suitability to the circumstances of the agent, not so the other virtues.
1715. While justice is inferior to the theological and intellectual virtues (see 156, 157, 1028), it is superior to most of the moral virtues that perfect the sensitive or the intellectual appetite. The superiority of justice to fortitude, temperance, and the annexed virtues, such as mercy (see 1207), is seen from the following reasons.
(a) Legal justice is greater than those other virtues, for, while they pursue the private good of their subject, it seeks the public good. “Great is the splendor of justice,” says St. Ambrose (De Officiis, lib. I, cap. 28), “which is born for others rather than for itself, and which aids society and the community. It holds high position, that all may be subject to its judgment, that it may bestow assistance, not refuse responsibility, take upon itself the dangers of others.” Moreover, since the law commands us to perform the actions of the courageous man, of the gentle man and of the temperate man, legal justice, as Aristotle says (Ethics, lib. V, cap. 2), is often regarded as the supreme virtue, the summary of all the virtues, more glorious than the star of eve or dawn.
(b) Private justice is also greater than those other virtues, since it perfects a nobler power of the soul (viz., the will), and seeks the good, not only of its own possessor, but also of others. Justice too is impartial or blind as between persons, demanding satisfaction, even though a debtor be a monarch, and granting redress, even though an injured party be the humblest or most undeserving of mankind. An indication that justice is nobler than regulation of the passions is seen by Aristotle (Ethics, lib. V, cap. 4) in the fact that it is more difficult and rarer: “Many people are capable of exhibiting virtue at home, but incapable of exhibiting it in relation to their neighbor. Accordingly, there seems to be good sense in the saying of Bias, that ‘office will reveal a man,’ for one who is in office is at once brought into relation and association with others. As then the worst of men is he who exhibits his depravity both in his own life and in relation to his friends, the best of men is he who exhibits his virtue, not in his own life only, but in relation to others; for this is a difficult task.”
1716. Two virtues of the sensitive appetite that appear more excellent than justice are courage and liberality, but in reality justice is nobler than they.
(a) Thus, courage seems to be better, because it is more essential to the common good in time of great danger; but in reality justice is more useful to the community, for at all times, whether in peace or in war, it is justice that preserves unity and contentment among the people and promotes courage and devotion to the public welfare.
(b) Liberality seems to be better than justice, because it gives more than is due, while justice gives only what is due. But, on the other hand, justice is of more general advantage, since of necessity liberality must be exceptional and shown only to comparatively few, while justice must be exercised continually and must be shown to all; justice is also more necessary, for one must be just in order to be liberal, and not vice versa, since no one is praised as generous unless he first pays the debts of justice; finally, although liberality gives more than is due and may thus be a greater private benefit, justice without liberality is more serviceable to the common interest than liberality without justice.
1717. Two virtues of the will which some authorities hold to be more important than justice are the virtues of religion and mercy.
(a) The virtue of religion has a nobler object, since it regulates the worship owed to God, while justice regulates the things owed to man; and its obligation is stricter even than that of legal justice.
(b) The virtue of mercy, which is a rational inclination of the will to relieve the suffering or misfortune of others, is held to be greater than justice, because to relieve the distress of the community or of an individual indicates greater perfection than to pay merely what is due to another.
1718. Virtues may be compared, not only from the viewpoint of the objective excellence which they have from their own natures (whereby they are unequal and rank according to the greatness of their objects), but also from the viewpoint of the subjective participation of them in the souls of their possessors.
(a) In a certain sense, all the virtues are equal in their possessor, since all of them alike are related to charity as their perfection (see 1118), and all of them increase or diminish in like proportions with the growth or decline of grace, which is their root (see 745).
(b) In a certain sense, too, the rank of the virtues may depart from the order of the dignity of their objects. For the facility and promptitude of exercise of an infused virtue does not depend formally on the infused virtue itself, but on subjective conditions, such as natural inclination or custom, or on a special gift of God (see 135, 136); and hence it may happen that a saint shows greater excellence and enjoys greater renown in an inferior than in a superior virtue. Thus, Abraham was singular in faith, Moses in meekness, Josue in bravery, David in fervor and devotion (Ecclus., xlv-xlviii), and St. Joseph is praised as “a just man” (Matt., i. 19).
1719. Injustice.--Just as the word “justice” is taken in a wide sense for holiness or the collection of all the virtues, and in a strict sense for a special cardinal virtue, so likewise the word “injustice” is taken widely as a synonym for any transgression, iniquity, or sin (“He sendeth rain upon the just and the unjust,” Matt., v. 45), but strictly for violation of the special virtue of justice (“Hear what the unjust judge saith,” Luke, xviii. 6). It is of this latter injustice that we now speak.
1720. Species of Injustice.--Injustice is of two kinds. (a) Legal injustice is a special vice that moves one to despise the common good or to act against it intentionally. Thus, if one steals or overeats merely to gratify a passion for money or for food, there is a certain condition of legal injustice, inasmuch as one violates a law; but if one does these things also or solely to injure the common good, there is a special sin of legal injustice, to be declared in confession. (b) Particular injustice is a special vice against the private good of others that moves one to seek for more than is one’s share, or to desire more of the benefits and less of the burdens than equality appoints. Examples: To sell above the just price or buy below the just price (commutative injustice); to show favoritism in the distribution of public offices or burdens, as when a person in authority showers public benefits on his unworthy relatives or friends, and overburdens with taxes those who are not his friends (distributive injustice).
1721. The Theological Species of Legal and Particular Injustice.--(a) From its nature injustice is a mortal sin, for it is an attack on a very great good, namely, the peace and security of society; the very foundations of orderly community life are shaken when injustice is done either to common or to private rights. Moreover, acts of injustice (unlike sins of mere passion), if the matter is serious, offend against charity, the life of the soul; for charity “envieth not, dealeth not perversely” (I Cor., xiii. 4); while injustice injures the neighbor and leads to hatred, quarrels, and separations. Hence, the Apostle says of injustice: “Do not err: neither adulterers, nor thieves, nor covetous, nor extortioners, shall possess the kingdom of God” (I Cor., vi. 10); and Our Lord, speaking of justice, says: “If you would enter into life, keep the commandments” (Matt, xix. 18).
(b) From want of sufficient advertence in the subject (see 173 sqq.), or from smallness of matter in the object (see 172), a sin of injustice may be only venial. Thus, if one takes money that belongs to another on account of vincible ignorance due to slight negligence, or if one takes only a small amount that does no serious injury, the injustice is venial.
1722. Rule for Determining the Gravity of Sins of Injustice.--The rule for judging whether the matter of a sin of injustice is great or small, is the quantity of injury it inflicts, or the degree of reasonable unwillingness of the offended person to suffer the injustice; for sins against the neighbor are culpable precisely on account of and in proportion to the harm they do to others. Hence, since every injustice offends either the public or private good, or both, the following acts of injustice are gravely sinful:
(a) mortal sin is committed when injury is done to a private right in a matter of such great moment that the person offended is reasonably and gravely unwilling to sanction the injustice (e.g., cases of calumny, adultery, incendiarism). But if the injury itself is small and the party offended is nevertheless gravely unwilling to suffer it, only venial sin is committed against justice, but there may be a mortal sin done against charity, as when one steals a worthless trinket, knowing that the owner is so unreasonably attached to it that the loss will almost break his heart or will provoke in him violent anger, profanity, etc.;
(b) mortal sin is also committed when injury is done to a public right in a matter so important that the community is with good reason gravely averse to the commission of the injury. This happens when the common good is directly attacked, as when a citizen rebels against lawful government, or when the peace and security of the community is imperilled because of injury done to a private person, as when one steals a sum that is considerable from a wealthy person, even though the latter will not seriously feel the loss. Hence, an injury to a private person that does not seriously harm him may seriously harm the community, and be gravely sinful on account of the disastrous consequences to social order that would follow if such an injury were not gravely forbidden.
1723. Moral Species of Legal and of Particular Injustice.--These are distinguished according to the main classes of objects or rights that are injured or offended (see 199). Hence, there are the following four kinds of injustice:
(a) injuries to spiritual rights or goods, whether natural or supernatural (e.g., superstition, idolatry, simony);
(b) injuries to internal goods of soul (e.g., lies) or of body (e.g., murder, mutilation);
(c) injuries to external goods, whether incorporeal (e.g., calumny) or corporeal (e.g., theft, fraud).
1724. Accidental Forms of Injustice.--There are also many accidental forms of injustice, that is, variations that do not of themselves change the moral species (see 200).
(a) Thus, as to its manner, injustice is done either positively, by action (e.g., by stealing from an employer), or negatively, by omission (e.g., by allowing another to steal from one’s employer). In both cases the same kind of injustice is committed; for example, he who permits theft is just as much a thief as if he had stolen himself.
(b) As to its consequences for the injured person, injustice is either merely injurious or injurious and damaging, according as a strict right is violated without loss (e.g., adultery from which no child is born), or with loss to the injured party (e.g., adultery from which a child is born). The character of the sin is the same in both cases, but in the latter case restitution is due (cfr. 1199, 1200). The loss (damnum) that results from violation of a strict right (injuria) may be in internal goods (such as salvation, life, health, sanity of mind) or in external goods (such as reputation, money, property).
(c) As to its consequences for the party who does the injury, injustice is either profitable to him (as in the case of unjust taking) or unprofitable (as in the case of unjust damage). The moral species is the same in either case, for the fact that the unjust person gains by his injustice does not make the injury greater, and the fact that he does not gain does not make the injury less.
1725. Injury is not suffered by one who knows and wills an act that is done contrary to his right (Rule 27 of the Decretals), for such a one cedes his right. Hence, if a man looks out with a smile while neighborhood boys take apples from his orchard and the latter take this as permission, no injustice, material or formal, is done. But the legal maxim needs interpretation, for the following two conditions are necessary in order that there be a surrender of right:
(a) the party who consents must be able to surrender his right, since, if he is not able to do so, his cession is invalid. Hence, one who kills a person asking for death is unjust to God and to the State; one who commits adultery with a woman whose husband gives permission is unjust to the marriage state and the lawful children; one who strikes a cleric who waived his privilege of canon (privilegium canonis) is unjust to the clerical state; one who takes property from a ward with the latter’s consent, is unjust to the estate, since the ward has no authority to alienate it. Many of the martyrs, it is true, wished to lose their lives at the hands of persecutors, but this meant only that they consented to the will of God, not that they consented to their own murder by the tyrants, for they had not the right to give the latter dominion over their lives;
(b) the party who consents must really will to yield his right, and hence, if there is error, fraud, fear or violence, the cession is of no effect. Thus, a buyer who through ignorance takes a defective article or pays an exorbitant price, a workman who through necessity accepts less than a living wage, or a man who yields his purse to a burglar at the point of the revolver, does not surrender his rights, since true consent is wanting. Similarly, when one follows the counsel of Christ not to resist spoliation (Matt., v. 40) or when a saintly person rejoices over injury done him (Heb., x. 34), the intention is not to surrender rights to the unjust, nor to approve their conduct, but to practise heroic virtue by patience, humility, forgiveness, etc.
1726. Internal Injustice.--Does internal injustice (i.e., the intention of injuring another) make an external action unjust?
(a) If the intention makes the external act to be a violation of a strict right, it also makes the external act unjust. Thus, to take a book from another’s room is of itself an indifferent action, for there may be, no violation of right (e.g., when the intention is to borrow), or there may be such violation (e.g., when the intention is to steal).
(b) If the intention does not make the external act a violation of strict right, even though that act be harmful to the other party, it does not make the external act unjust. Hence, if the other party has no strict right against the external act (e.g., Titus sees the house of Balbus on fire, but he is not hired to take care of Balbus’ property, and he gives no alarm in order that the house may burn down) or if the agent has a strict right to perform the external act (e.g., Claudius, a judge, condemns Sempronius, according to law, but his chief intention is the harm he will inflict on the latter), the unjust intention does not make the external act unjust. But in these cases sin, and even grave sin, is committed against charity.
1727. Judgment.--Judgment, or the right determination of what is just and due to others, is the proper act of the virtue of justice, and hence Aristotle (Ethics, lib. V, cap. 7) declares that people take their disputes to a judge as to justice personified. Judgment is either public or private. (a) Public judgment is passed by a judge who has the authority to compel disputing parties to abide by his decisions. (b) Private judgment is passed by individuals without public authority concerning the morals or conduct of others.
1728. Since judgment is an act of virtue, it is lawful, and we find that both in the Old and the New Testament men have been appointed with authority to judge others. Thus, God ordered that judges be chosen in all the cities of Israel (Deut., xvi. 18); St. Paul declares that the judge is the minister of God (Rom., xiii. 4), and from Apostolic times tribunals have been set up in the Church. But certain conditions are required for moral goodness, both in those who ask for judgment and in those who pass judgment.
(a) Thus, those who seek judgment must be actuated by proper motives and must conduct themselves in a virtuous manner. Our Lord in Matt., v, teaches that it is better to suffer temporal loss rather than to contend in judgment from a motive of revenge to the prejudice of one’s spiritual good, and St. Paul condemns the Corinthians because they gave scandal by reason of their lawsuits before heathen tribunals and had recourse to frauds and injuries in their litigation (I Cor., vi. 1 sqq.).
(b) Those who pass judgment must have a good intention, must proceed according to law, and must decide according to prudence. If the first condition is wanting, judgment is unjust or otherwise sinful, according as the judge chooses against the right or is merely prompted by some human motive (such as hatred, anger, vainglory, avarice); if the second condition is lacking, judgment, if public, is usurped or illegal, if the third condition is not had, judgment is rash. But it should be noted that the Church has condemned the teaching of Wicliff that office and authority are forfeited by sinners (Denzinger, 595, 597).
1729. First Condition of Righteous Judgment.--The first condition of righteous judgment is that the purpose of the judge be just and sincere. But is it possible for judgment to be righteous if the judge is a bad man--that is, if he is in the state of mortal sin?
(a) If the sin of the judge is public, and judgment is given against a sin of the same character (e.g., if a notorious thief passes sentence on another thief), serious scandal is given; for justice is discredited and an occasion offered for criticism of authority and for lawlessness. But if the sin is not of the same character as the one condemned (e.g., if a notorious thief passes sentence on a murderer), the scandal is not grave in so far as justice is concerned.
(b) If the sin is not public, it is clear that no scandal is given; and if the judge is moved by the duty of his office and by zeal for justice to condemn even the same kind of sin of which he himself is guilty, he commits no sin whatsoever in so doing (cfr. 1280). But he is guilty of hypocrisy if he uses the opportunity to pretend a personal righteousness which he does not possess. It is this that Our Lord reprobated in the Pharisees, who, although guilty of many and grave crimes, wished to put to death an adulteress in order that they themselves might thus shine as immaculate. The words, “Let him that is without sin among you cast the first stone” (John, viii. 7), condemn hypocrisy in judges, though they do not require that a judge be free from all sin. But though sinners may act against sin as lawmakers, prosecutors, judges, jurymen, police, etc., they should be admonished by their office to reform themselves according to the words of St. Paul: “In judging another, thou condemnest thyself, for thou dost the same things which thou judgest” (Rom., ii. 1).
1730. Second Condition.-The second condition of righteous judgment is legality, if there is question of judgment in court.
(a) Thus, the judge must have public authority, for, just as laws cannot be made except by public authority, neither can they be interpreted except by the same authority (Rom., xiv. 4). Hence, proceedings that are not held in the proper place, at the proper time, or in the manner prescribed by law are void, and the same is true if a court has not jurisdiction over the parties or over the subject-matter in controversy.
(b) The judge must administer justice according to the law and the usual method observed in courts, since his office is to interpret, not to make law or custom (jus dicere, non facere). His opinions as precedents may affect the development and growth of law, and hence he is especially bound to be faithful to general principles that are binding on him. If a statute in its operation is found to impede the just disposition of controversies, judges perform a public service by indicating this to those who have authority to regulate procedure. If the application of a law would work injustice, no judge can in conscience pronounce sentence according to that law; but there are many cases recognized in jurisprudence in which courts of equity afford relief to rights that cannot be defended or protected in courts of law, and in cases of this kind the judge should be guided by recognized principles of natural justice and the rules of his court.
1731. Third Condition.--The third condition of righteous judgment is that the sentence or decision be prudent or well-founded. Thus, in a judicial process the facts of a case must be examined and the rules of evidence be observed in judging the meaning of the facts. Since rash judgment is a sin committed, not only externally and in public, but also and especially internally and in private conclusions formed about the character or deeds of others, and since it is one of the commonest of sins, it will be well to explain its nature somewhat fully.
(a) It is an internal sin, and so it differs from external acts against the neighbor; but calumny, detraction, and unjust sentence are its outward expressions.
(b) Rash judgment is an internal sin of decision in which something is affirmed or denied mentally about a neighbor, and so it differs from a mere representation or thought. This distinction is important for scrupulous persons who think that mere suggestions against others that flash through their minds are rash judgments. These suggestions are a very common temptation, and, if repelled, are an occasion of merit; they become sinful only when entertained with pleasure.
(c) Rash judgment is a decision unfavorable to another in matters of character or honor. Thus, it differs from favorable decisions (as when without reason one holds that another is virtuous or has extraordinary merit), and from unfavorable decisions on matters other than character or honor (as when one concludes that a neighbor is mentally or physically deficient, and these defects are not connected with depravity nor considered as ignominious), and from unfavorable decisions that relate to sin but are not personal (as when one thinks that an expression used by an ignorant man is blasphemous, but passes no judgment on the state of conscience of the man).
(d) Rash judgment is a decision that expresses conviction, and not mere supposition. Thus, it differs from the prudential attitude by which one assumes for the sake of security that a stranger is to be distrusted, since he may be dishonest.
(e) Rash judgment is a certain conviction or judgment, that is, one which holds its own view as true and certain and does not consider the opposite of its view as worthy of consideration. Thus, it differs from doubt (that is, a state in which the mind is suspended between the unfavorable view and its opposite, and does not incline to one more than the other), from suspicion (that is, a state in which the mind inclines to the unfavorable view, but does not assent to it as being either probable or certain), and from opinion (that is, a state in which the mind assents to the unfavorable view as being probably true, but admits that it may be untrue). These various forms of mental reaction were treated in 654 sqq.
(f) Rash judgment is rash, that is, a belief based on insufficient authority, or an inference that is really groundless or not well drawn from premises. Thus, if one judges that one’s neighbor is a thief, because this was told one by an honest and well-informed person, the judgment is prudent; but, if one judges this on the word of a person who is unreliable or who has no knowledge of the facts, the judgment is imprudent. Again, if one judges that it is certain that one’s neighbor is a thief, because one has evidence that removes all doubt, the judgment is prudent; but if the evidence is merely probable, an opinion based on it is prudent, but a judgment based on it is imprudent. It is not rash to hold that the majority of mankind are lost, or that the present generation is not as good as the generation that preceded, if one has good reasons for such beliefs; but a sweeping and all-inclusive pessimism in such matters is unwarranted.
1732. The reasons for a judgment may be sufficient for something else, but insufficient for the judgment actually formed.
(a) Thus, they may be reasons sufficient for judging that one kind or degree of sin has been committed, but insufficient as regards another kind or degree of sin. For example, if one breaks the lock of another’s desk, there is an argument for willful trespass, but this alone does not prove larceny or the intent to steal.
(b) They may be sufficient for doubt and insufficient for suspicion, sufficient for suspicion and insufficient for opinion, or sufficient for opinion and insufficient for judgment.
1733. Rash Judgment.--Opinion, suspicion, and doubt are also rash, if there is no sufficient reason to warrant them.
(a) Thus, if there are no probable reasons for an unfavorable opinion, it is rash to form such an opinion. For example, the mere fact that two men have frequent and whispered conference together does not make it likely that they are plotting evil.
(b) If there are no sufficient reasons for inclining towards an unfavorable opinion or for suspending all assent, suspicion and doubt are rash. For example, the mere fact that a man enters a house when the owners are absent is no reason to suspect him of dishonest purposes, or even to have doubts, if he is of good reputation and enters the house in daylight and in a usual way.
1734. Sinfulness of Rash Judgment.--Rash judgment strictly understood, then, is a firm assent of the mind, based on insufficient data, and given to the view that a neighbor is or has been guilty of sin.
(a) From its nature this sin is mortal, for it consists in a contempt for, and an injury to, what is regarded as one of the chief goods of man, namely, the favorable opinion of him that is entertained by others. It is denounced in Scripture as an injury to the law itself (“He that judgeth his brother judgeth the law,” James, iv. 11), and as meriting condemnation (“Judge not, and you will not be judged, condemn not and you will not be condemned,” Luke, vi. 37).
(b) From the imperfection of the act or from the lightness of the matter rash judgment may be only a venial sin, as when unfounded suspicions arise in the mind without advertence to their sinfulness, or when one rashly judges in some small matter (e.g., that another person stole a pin or a cent).
1735. Rash judgment is not mortally sinful in an individual case unless the following conditions are present:
(a) there must be perfect deliberation, that is, full advertence to the judgment itself and to its sinfulness and gravity (see 175). There is no full advertence to the sinfulness and gravity of the judgment, however, if one does not perceive at least in a confused manner that one is deciding in one’s mind without sufficient reason that one’s neighbor is guilty of serious sin, and is thereby doing the latter a great injury. But it is not necessary that the rash judgment continue for a considerable time, for the malice depends on the evil done, not on the length of time it has lasted;
(b) there must be serious rashness, for the sinfulness of the judgment rests on its rashness. Hence, if one judges a sin to be certain which is very probable or almost certain, there is no great imprudence and therefore no serious sin;
(c) there must be grave injury and contempt, for in these the malice of rash judgment consists. Hence, if one judges that another is a drunkard and neither the latter person nor others in the same place regard drunkenness as very dishonorable, there is no great harm done. Similarly, if one judges that some indeterminate individual of a multitude or group is a rascal, or that a stranger whom one sees on the street late at night is out on an evil errand, or that an unknown party seen from a distance is on his way to a disreputable meeting, it does not seem that there is great injury done; for one does not greatly resent lack of esteem in others to whom one is not known.
1736. Rules on Perfect Advertence to Rashness of Judgment.--(a) There is perfect advertence when one actually perceives that the reasons for one’s unfavorable judgment are very insufficient; (b) there is perfect advertence when one virtually perceives the serious insufficiency of the reasons, that is, when one could and should perceive it, but is vincibly blind to it (see 30, 31) on account of some passion wilfully indulged, such as hatred or envy of the person judged. In these cases one judges with negligence and precipitancy in a serious matter (see Imprudence).
1737. Rules on Insufficiency of Reasons for Unfavorable Judgments.--(a) Those authorities for sin are not sufficiently trustworthy whose reliability is of inferior worth (e.g., because they are enemies of the person against whom they speak, or calumniators, or gossipers, or of bad reputation, etc.), or whose story does not merit the credence they claim for it (e.g., because the person against whom they speak is known as upright). If both the authorities for a story and the person against whom they speak are equal in good qualities, there is sufficient reason for doubts, but nothing more.
(b) Those arguments for sin are not sufficient which create for what is concluded only a slight presumption (see 658), that is, which offer facts that are never, or seldom, or not necessarily causes or effects or indications of sin. Thus, it is rash to judge that a mature man and woman conversing together in a dignified manner and in a public and open place are discussing obscene matters; or that a respectable person whose face is flushed, or whose hand trembles, or who slips on the street, has been imbibing too freely; or that a man climbing into a second story on a frequented highway and in broad daylight is a burglar. This rule may be expressed in other words by saying that reasons for drawing unfavorable conclusions are insufficient when in view of the circumstances and time, place, persons, deed, etc., no prudent person would consider the conclusions as warranted.
1738. Rules on Gravity of Matter in Rash Judgments.--(a) From the nature of the thing ascribed to the other person, only judgments that mortal sin has been committed are grave matter; for only mortal sin is in itself a grave reproach.
(b) From the circumstances of persons or acts, rash judgment of mortal sin may be only venial; for it sometimes happens that certain kinds of serious sins are not considered very ignominious in certain persons or conditions. Thus, in some places it is considered honorable for soldiers or students to have wounded adversaries in duels; some persons of a rough kind are proud of their proficiency in blasphemy or obscenity; where drunkenness is common, it is not considered as very disgraceful.
(c) From the circumstances of persons or acts, rash judgments of venial sin or of what is not sin at all may be mortal; for to those from whom much is expected slighter defects may be causes of great disgrace. Thus, it is very dishonoring to the parties concerned to think that a prelate is an habitual liar, that a nun visits too often, that a public official is illegitimate or stupid or afflicted with syphilis, and therefore unworthy of his position.
1739. The Moral Species of the Sin of Rash Judgment.--(a) It is a sin against justice, because it infringes the strict right of the neighbor that he be not judged guilty of evil without sufficient reason, and that he be not held worthy of contempt until he has clearly forfeited the right to respect. It is true that judgment as here taken is an internal act, and that it was said above that only external acts form the subject-matter of justice; but internal acts that are referred immediately to external acts, as concupiscence tends to lust and anger to injury, may be classed with these external acts. Hence, internal judgment naturally leads up to external judgment, and so it pertains to justice, just as the desire to steal is unjust and the desire to make restitution is just.
(b) It is a sin against charity, because it does not practise benevolence (“Charity thinketh no evil,” I Cor., xiii. 5), and is usually associated with ill-will or envy. He who judges rashly does not love his neighbor as himself, for he does not observe the rule not to do to others what he would not have done to himself.
1740. The moral species of rash judgment is not changed according to the species of sin attributed to another (such as heresy, dishonesty, impurity), and these circumstances of the rash judgment need not be mentioned in confession.
1741. The Moral Species of Rash Opinion, Suspicion and Doubt.--Do the conclusions given above on the theological species of rash judgment apply also to rash opinion, suspicion, and doubt?
(a) Some theologians answer in the affirmative, and argue that the same grave injury and contempt of the neighbor is found in these sins as in rash judgment, and that Scripture makes no distinction between the one and the other. On the contrary, they say, murmurings, detractions, and hatreds are caused oftener by doubts, suspicions, and opinions, since firm and certain judgments are not so often formed; and moreover there is no one who would not prefer to be judged certainly guilty of fornication than to be doubted or suspected of more heinous crimes, such as incest or sodomy.
(b) Other theologians answer in the negative, and argue that suspicion and doubt do not inflict a severe harm, since they stop short of firm decision of the mind and so are incomplete injuries which diminish rather than take away the esteem due to another. But the defenders of the affirmative reply that, while opinion, suspicion and doubt are incomplete as regards assent, they are not incomplete as regards deliberation and consent, and so can be mortally sinful, as is seen in the case of doubts against faith (see 840 sqq.).
(c) Still other theologians hold that rash opinions, suspicions and doubts are from their nature mortal sins on account of the arguments for the first opinion, but that in actual experience they are usually venial on account of the imperfection of the act (since on account of human frailty doubts, suspicions, or evil opinions of others can easily arise before they are noticed), or the lightness of the matter (for there is rarely one of these mental states without some reason that seems to be at least approximately a justification). But it seems likely that rash judgments themselves are seldom mortal sins, since the conditions for mortal sin are not often realized in them.
1742. The Chief Reasons for Rash Conclusions about the Character of Others.--(a) A first reason is that the person who draws the conclusion is bad himself. Evil-doers are very prone to suspect others of evil, for sin seems so delightful to them that they think others must find the same pleasure in it: “The fool when he walketh in the way, since he himself is a fool, esteemeth all men fools” (Eccles., x. 3).
(b) A second reason is that the wish is often father to the thought. Thus, if one hates or envies another or is angered against him, even trifles light as air will suffice to make one judge him guilty of sin. Just as love blinds an infatuated lover to the sins or crimes of the object of his affection, so does prejudice give a distorted vision that can see nothing but evil in the object of its dislike.
(c) A third reason for rash views unfavorable to others is long experience in dealing with human nature. Thus, old men sometimes become not merely cautious, which is reasonable, but unduly suspicious. Similarly, those who have encountered many trials or disappointments in life often become cynical and misanthropic, and to them the actions of all their fellowmen appear either evil or at least spoiled by an evil purpose.
1743. Rash Doubts.--Doubt about the probity of others is sinful, when there are no sufficient reason for it; for example, it would be unreasonable to suspend judgment about a man of excellent reputation because a well-known calumniator had spoken against him. But a doubt may be reasonable, as when a person has had a good reputation for honesty but a reliable witness declares that he is dishonest. In such a case should one decide for the innocence or for the guilt of the party called into doubt, or should one suspend judgment on the matter?
(a) It is not lawful to interpret reasonable doubts in a sense unfavorable to another person, for this would amount to rash judgment, since the reasons are sufficient for doubt but not for decision. Hence, it would be wrong to believe that a person of good repute was a thief, because another person of good repute said so.
(b) It is lawful to suspend judgment in case of reasonable doubts, if there is no obligation of deciding one way or the other, for in so doing one does no injury either to one’s own intelligence (since the doubt is reasonable) or to the honor of another person (since, as supposed, there is no obligation of judging positively in his favor). Just as there is no duty of making acts of love of our neighbor on every occasion, neither is there a duty of deciding doubts to his advantage on every occasion, or of having any opinion about him whatever. Some authors do not admit this, but the common teaching is against them.
(c) It is not lawful to suspend judgment, but the reasonable doubt must be resolved in a favorable sense, if there is an obligation or a wish to decide one way or the other; otherwise one would decide in an unfavorable sense and be guilty of rash judgment. This is what is meant by the well-known maxim that doubts about the character of a neighbor should be settled in favor of the neighbor. Hence, if one were in serious danger of forming a rash judgment and could not otherwise overcome the temptation, a suspension of judgment should give place to favorable judgment. It is true that one may be frequently in error by thus judging well of mankind, since man is inclined to evil from his youth (Gen., viii. 21) and the number of fools is infinite (Eccles., i. 15). But it is a less evil to fall into the speculative error of taking a bad man for good than by adopting another course to fall into the practical error of becoming bad oneself by violating a law of prudence, justice and charity; and it is less harmful that many sinners should receive more credit than they deserve, than that one just man should be deprived of the good opinion that belongs to him. Pseudo-Ambrose (Apol. ii, David, c. 2, n. 5) says that those who judge others rashly often become worse by this act than the persons they judge; and St. Thomas remarks that favorable opinions of others harm no one, whereas unfavorable opinions are a wrong to innocent persons.
1744. The interpretation of doubts in a favorable sense does not mean that one may not take into consideration the possibility of danger or deception and use remedies or precautions. This course is not rash judgment, for even when one judges that another person is good, one knows that the judgment is possibly wrong, and therefore cannot be entirely relied on for external guidance.
(a) It is lawful, therefore, to act as if one did have a bad opinion of another when there is a possibility of harm that must be guarded against. Thus, a father may forbid his children to keep company with other children, for these latter may be corrupt; an employer may keep his money under lock and key, because servants may be dishonest; a traveller may carry weapons, because the inhabitants among whom he travels may be treacherous. Even though appearances are favorable, one may be on one’s guard, for appearances are often deceptive.
(b) It is not lawful, however, to protect oneself or others in such a needlessly conspicuous or offensive manner as to sadden or defame the other party against whom one takes the precautions. Thus, it would be unjust and uncharitable to go about ostentatiously locking safes and drawers whenever a certain person appeared, for this would be equivalent to saying that he was a thief.
Art. 3: THE SUBJECTIVE PARTS OF JUSTICE: COMMUTATIVE AND DISTRIBUTIVE JUSTICE
(Summa Theologica, II-II, qq. 61, 62.)
1745. The Three Species of Justice.--The subjective parts of a virtue are those that partake of its essence and that are the subordinate species into which it may be distinguished, as prudence is divided into individual, domestic and political (see 1639). There are three species of justice, and their division is taken from the threefold relation that exists in a whole.
(a) Thus, legal justice directs the parts to respect the rights of the whole, and it is exercised by all those who promote the common good of a society by fulfilling well the duties which pertain to their position and rank in the society.
(b) Distributive justice regulates the whole in reference to the parts, and it is exercised by all those who seek for such a distribution of the common things of a society as accords with the inequalities of merit and ability of the members. Hence, distributive justice is found not only in the heads of a state, or family, or other body, but also in the subordinates who are content with the fair distributions made by the heads.
(c) Commutative justice orders the relations between the parts, and it is exercised by all who practise fair dealing with their equals, that is, by states with states, families with families, societies with like societies, individuals with individuals; or with those who act as their equals, as when a society acting as a moral person makes a contract with one of its members as another moral person.
1746. Resemblance between Distributive and Commutative Justice.--The general likeness between distributive and commutative justice may be summed up as follows:
(a) they have the same remote matter, since both alike are concerned with external things, persons or works. Thus, things such as goods of fortune may be distributed by the community to its members, or may be exchanged by individuals between them; labors to be performed may be assigned by the community or may be agreed on by private persons through contract;
(b) they have the same general form, since both alike seek to impress equality on the matter with which they deal, by rendering in these things to every one his due, and by making man’s actions towards his neighbor to follow the mean of reason and of the thing (see 1711).
1747. The Special Differences between Distributive and Commutative Justice.--(a) They differ in their proximate matter, that is, in the operations by which use is made of external things, persons or works; for while distributive justice acts through distribution (or division), appointment, or assignment among many, commutative justice acts through exchange, or transfer from one to another between two persons.
(b) They differ in their special form; for distributive justice seeks equality and the golden mean, according to proportion, while commutative justice seeks the same according to quantity (see 1712). Distributive justice does not treat parties as equals, but gives to each one according to his personal worth--to the more deserving the superior positions and high salaries, to the less deserving the inferior positions and lower salaries. Commutative justice, on the other hand, treats the parties as equal, and decrees that debts must be paid and injuries repaired, even though payment or reparation must be made by a good man to a bad man, and that the recompense must equal the difference created between the parties by the debt or the injury.
1748. Commutations of Commutative Justice.--There are various kinds of commutations or exchanges used by commutative justice, but they do not create new species of justice, since they are only accidental modes of the act of giving the equivalent of what one receives. They are classified as follows:
(a) involuntary commutations, which are those in which reparation is made for the use against the will of another of the things, persons, or works that pertain to him. Thus, the property of another is used unlawfully by secret theft and by open robbery; the person of another is injured by murder and wounds; the honor of another by secret calumny and detraction, by open false testimony and contumely; the rights of another to persons are used unlawfully by adultery with his wife, by seduction of his servant, and the like;
(b) voluntary commutations, which are those in which compensation is made for a benefit that one derived with the owner’s consent from something that was his, or in which one gives or returns to another what is his. They include the various forms of contracts, or agreements between two parties in which the consent of both to the same proposal is externally manifested and obligation is produced to abide by the terms of agreement.
1749. Forms of Contract.--The chief forms of contract are the following:
(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;
(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);
(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;
(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.
1750. The Equality Sought by Commutative Justice.--The equality in quantity sought by commutative justice means that in involuntary transactions the offender must suffer a punishment equal to the injury he offered or must pay a recompense equal to the damage he caused, and that in voluntary transactions one must give the equal of what one receives. But this can be understood in two ways.
(a) Thus, equality may be taken for identity in species, in the sense that the same kind of thing must be taken or returned (e.g., a life for a life, an eye for an eye, a tooth for a tooth). This kind of equality will do in some instances, as in cases of exchange of goods, but as a rule it would not be fair to both parties. Thus, if a subject strikes a ruler, he is not sufficiently punished if he receives the same kind of blow, for the injury to the ruler is greater on account of his office; when a man steals a cow or a sheep, he is not sufficiently punished if he restores what he took, for he would suffer no loss and the community whose peace he had offended would go without satisfaction (Exod., xxii. 1); if one gives one’s cow for another’s cow, or if a shoemaker trades his products for the clothes made by a tailor, the exchange may be unfair, since the thing given on one side may be better than that given on the other side.
(b) Equality may be understood as identity in value, in the sense that the thing taken or returned has the same quantity of goodness or excellence as the thing received, no matter how they differ in species. This kind of equality must be observed as a rule both in involuntary and voluntary transactions. Thus, for injury done to merchandise payment is made in money, or vice versa. If equality in value is not possible, because the good for which one owes is on a higher plane than the good which one is able to give, it seems that justice requires one to approximate equality as far as possible, and hence mayhem or defamation should be compensated for by the goods of fortune (see 1802 and 2090).
1751. Restitution.--Justice not only commands that one pay or give back what is due in voluntary transactions, but also that one repair injury which one has caused in involuntary transactions. But the four acts of payment, restoration, satisfaction, and restitution must not be confused.
(a) Thus, payment is the lawful bestowal by one person on another person of something of value in return for some other thing of value. It is clear that payment differs from satisfaction and restitution, since it supposes no act of injustice done.
(b) Restoration is the return to another of his property of which one had just possession, as when a borrower gives back to the lender, or a depositee to the depositor. This also differs from satisfaction and restitution, since it is a voluntary transaction (see 1792, 1796).
1752. Differences between Satisfaction and Restitution.--(a) They differ as to their principle or cause, since satisfaction is due for injury to honor, restitution for injury to goods by unjust detention or unjust damage. Hence, a person who has dishonored another (e.g., by disrespect) is bound to satisfaction; a person who has injured another (e.g., by destroying his goods) is bound to restitution; a person who has both injured and dishonored another (e.g., by adding insults to robbery) is bound to restitution and satisfaction.
(b) Satisfaction and restitution differ as to their term or object, since satisfaction is chiefly concerned with the person to whom amends must be made (as by apology), while restitution is chiefly concerned with the thing which must be given back in itself or in its equivalent.
1753. When Restitution Is Due.--Restitution is the act by which one places another in renewed possession or ownership or chance of ownership of that which is owed to him because it is his by reason of a strict right in re or ad rem; in other words, it restores the equality that existed before an injury was done to the goods of another.
(a) Thus, restitution is not due for violation of virtues other than justice, because these virtues are not concerned with strict obligations and rights. Repentance and satisfaction are due for all sins, but they are not the same thing as restitution. Hence, one is not bound to restitution if one refused to help with alms a person in extreme need, or if, not being obliged to it by office, one neglected to extinguish a fire or to prevent a robbery. These are sins against charity, not against justice.
(b) Restitution is not due for violations of virtues that pertain to justice but do not confer strict rights, and hence it is only a violation of commutative justice that entails the obligation of restitution. Thus, if one has been surly or ungrateful, no legal right has been violated and no restitution is due.
1754. Does Distributive Injustice Oblige to Restitution?--(a) If only distributive injustice is committed (e. g., if a parent gives his children all necessaries but shows special favor to those that are less deserving), there is no duty of restitution, for there is no strict claim to special favors. (b) If commutative injustice accompanies the distributive injustice (e.g., if a ruler acts against his agreement to give the best position to the person who passes the best examination), there is a duty of restitution, for there is a strict claim to rights under contract.
1755. Distributive Justice and the Violation of Strict Rights.--Injustice in distribution is frequently accompanied by injustice in transaction on account of some strict right violated, and hence by reason of the latter injustice there will be a duty of restitution (see 1708, 1808).
(a) Thus, distributive injustice is accompanied by violation of a strict right of society when an unfair distribution is contrary to agreement made with the community (e.g., when one is appointed or paid especially to make fair distributions, or the law or contract expressly imposes this obligation), or when it causes harm to the community which one is bound ex officio to prevent (e.g., when one appoints as public physician or surgeon a person who is entirely unfitted for the post).
(b) Distributive injustice is accompanied by violation of a strict right of an individual when it is against contract (e.g., when a person undertakes to select the best statue or portrait presented in a contest, but chooses one that is inferior), or when it inflicts loss on a private person (e.g., when a tax assessor requires more than is due from some persons, or an examiner admits to a school which receives only a limited number an unworthy candidate and thus excludes a worthy one, or a board rejects a worthy candidate as unworthy).
1756. Commutative Justice and Unfair Awards of Prizes.--Unfair awards of prizes in competitions are not violations of commutative justice unless the following conditions are present:
(a) the promise of award must be given as a contract binding in justice, for if the promisor intends only to bind himself in fidelity, the promisee obtains no strict right. Hence, an unfair distribution is not against commutative justice if a competition has not the character of a real contest or of an onerous compact to reward the person who surpasses his rivals, but is rather an opportunity to compete for the free bounty of the promisor (e.g., if the organizer of an entertainment offers a prize for the prettiest baby), or an encouragement to useful industry (e.g., a first prize for the best garden in a neighborhood). On the contrary, if the promise is part of an onerous contract, the promisor is bound in justice and the promisee obtains a strict right. This is the case when the competition has the character of a real contest, in which the contestants must undergo special labor, preparation, expense or trouble, etc., in order that the award be given to the most meritorious;
(b) the thing promised as subject of award must be the prize, and not merely a claim or right to be considered for the prize. Hence, if an examination is held in order that a number of worthy persons may be listed for future vacancies in offices or dignities, the person who passes as most worthy has no strict right to be given an office or dignity, but only to be considered for it.
1757. Has a person who passes as most worthy in an examination held in order to fill a vacant post a strict right to receive the post?
(a) According to the common opinion he has a strict right, because there is at least an implicit contract to the effect that the position will be given to the most worthy, since the examination is competitive.
(b) According to some authorities he has no strict right, because public positions are not to be regarded as rewards of merit, and the examination is not part of a contract but is only a means used by a superior to assist him in acting according to distributive justice. Nevertheless, even in this opinion an unjust award is a sin, and at times a grave sin, against distributive justice, and may accidentally be joined with commutative injustice (see 1755).
(c) Under the civil service method, or merit system, of appointment, the appointing official is bound by law to observe the rules of the civil service commission. The usual procedure is for the commission to submit the names of the three persons highest on the examination list. Position on the list is determined by competitive examination plus preferential points for veterans, experience in jobs, etc. (On the whole the preferential system does not seem to involve any injustice to those who do not receive the preference.) One of the three must be chosen for the first vacancy; for the second vacancy the remaining two, together with the next highest eligible, are proposed. Grave injustice against distributive justice would be done in not proceeding according to the legal method, and some degree of injustice might be done to an eligible who is illegally removed from a list, passed over, etc. Of the three highest eligibles no one has a strict right to the vacant post, but solely the right to be seriously considered.
1758. What should be said of a superior who would promote undeserving persons to ecclesiastical benefices?
(a) As regards guilt, it is a mortal sin to confer a benefice on one who is unworthy, or even (when there is question of a benefice to which the care of souls is attached) on one who is less worthy (see Canon 459, Sec. 1).
(b) As regards restitution, there is an obligation of reparation to the community, when it is made to suffer loss, and of compensation to an individual who is passed over in spite of his strict right (see three preceding paragraphs).
1759. The Obligation of Restitution.--(a) The obligation is both of natural and divine law. Reason itself dictates that everyone should receive his due, and revelation expressly commands restitution, as when it declares that he who has injured his neighbor’s field or vineyard must restore according to the damage done (Exod., xxii. 5).
(b) The obligation is both of means and of precept, for without restitution the offender does not obtain pardon from God (Ezech., xxxiii. 13 sqq,; Tob., ii. 20 sqq.). Hence, one who has seriously injured his neighbor cannot be saved unless he actually makes restitution, if he is able, or intends to make restitution when possible, if here and now he is not able to do so. A debtor who makes no effort to make restitution (e.g., one who refuses to deny himself luxuries, to curtail his expenses, to leave restitution money in his will), cannot be said to have a sincere intention of fulfilling his duty. But it is not true that a person who dies in venial sin on account of restitution neglected must remain in Purgatory till all the restitution is made; for this would make the punishment depend on the negligence of the heirs or on accident.
(c) The obligation is grave if the damage (absolute or relative) and the fault were both grave, for restitution is an obligation of strict justice (see 1753); the obligation is light if both the damage and the fault were light, for the injury then is light.
1760. Duties of Confessors about the Obligation of Restitution.--(a) As to confession, the penitent is obliged to mention the number of sins committed against the duty of restitution, if there have been many acts of intention not to pay (see 202 sqq.); but as a rule those who have for a long time continued in sinful neglect of the duty of restitution have committed only one sin thereby, or else they do not apprehend their duty of mentioning the distinct internal acts, and hence confessors are advised not to question overmuch about this.
(b) As to absolution, the penitent lacks true contrition if he is under a serious obligation to make restitution and is wilfully opposed to the performance of this duty at all or at the proper time. Such a one may not be absolved. But the confessor should not admonish a penitent of the duty of restitution, if the penitent is in good faith and the admonition would only do harm. If the obligation of restitution is only light, absolution may not be refused, and prudence will often advise that no admonition about the obligation be given.
1761. There are a number of situations possible when damage done is grave and culpability slight.
(a) Thus, the damage may be entirely involuntary, as when the offender could not foresee it and did not wish it (e.g., Sempronius commits a venial sin by speaking harshly to Claudius, whom he likes, but the latter is so depressed at this that he commits suicide). In this case there is clearly no obligation of restitution.
(b) The damage may be voluntary only interpretatively, as when the offender could not foresee it, but would have willed it had he foreseen it (e.g., Sempronius is glad when he learns that Claudius committed suicide, but would be much surprised if he knew that a harsh word of his caused it). In this case according to some there is a grave duty of restitution, because internal guilt and external damage are present; but others, with greater probability, deny the duty of restitution, for the damage was not caused by the internal sin of hate, which is not effective of itself, nor by the external harsh word, which was an occasion rather than a cause (see 1447, 1763).
(c) The damage may be voluntary directly, as when the offender wills it in itself (e.g., Titus steals a considerable sum from Balbus, but he is invincibly ignorant and thinks that the wealth of Balbus makes the sin only venial), or the damage done is voluntary indirectly (e.g., Caius is guilty of slight carelessness in guarding his cattle, and they get into a neighbor’s garden and cause great damage to crops; Caius foresaw some damage, but he could not have foreseen the actual grave damage that was done). About these cases there are various opinions, which will be given in 1765.
1762. The Roots of Restitution.--The roots or sources of restitution are usually reduced to two, according to the following two general kinds of injury inflicted on others:
(a) unjust damage, which is the loss inflicted, on the goods of another, without advantage to the offender, as in murder or incendiarism;
(b) unjust possession, which is the loss inflicted on another by the possession of his goods without his consent or against his will, to the advantage of the offender, as when a murderer steals from his victim, or an incendiary gets the insurance from the house he destroyed.
1763. Unjust damage that obliges to restitution is only an act (or omission) that is both injurious (being a guilty violation of another’s strict right) and productive of loss. Hence the following conditions:
(a) the act must be objectively unjust, a contravention of a strict right in re or ad rem (see 1695 sqq.), for example, stealing or keeping back the wages due an employee. But it is objectively unjust to deprive another of a non-strict right (e.g., the right of a beggar to an alms) by unjust means, such as force, fraud, calumny, etc. If a neighbor is not hindered from his strict right and unfair means are not employed, there is no objective injustice (e.g., when a merchant improves his place of business and thus draws away customers from a rival merchant);
(b) the act must be efficaciously unjust or the true cause of the loss which another suffers, for one is not responsible for what does not proceed from one’s act. An act is not efficaciously unjust, therefore, if it is only the occasion of damage (e.g., Titus steals and Balbus imitates him; Claudius steals, and on account of circumstantial evidence not arranged by Claudius, Sempronius is arrested and sentenced to prison), or if it is only a conditio sine qua non (e.g., Caius gives whisky to Julius, who needs its stimulation to nerve himself for a crime), or if it is only an accidental cause (e.g., Titus steals a small sum of money from a miser, and the latter, to the great surprise of Titus, becomes insane);
(c) the act must be subjectively unjust, that is, culpable and imputable; for one is not bound to satisfy for acts that are inculpable or not imputable (see 97 sqq.). There must be either theological culpability, that is, the intention to harm another, which is sinful before God (e.g., he who purposely sets fire to his neighbor’s barn), or juridical culpability, that is, carelessness which causes injury to the legal right of another (e.g., he who lights a fire near his neighbor’s buildings and by his absent-mindedness permits the buildings to catch fire).
1764. Some Causes That Remove or Diminish Theological Culpability.--(a) Mental derangement or passion (e.g., great fear or anger) may make an injurious act unintentional and so take away natural liability for restitution (see 40 sqq.), but the civil law does not always admit the excuse, and after sentence the offender is bound to pay.
(b) According to some authorities, error about the extent of the harm that is being done, if invincible, excuses from restitution for damage that was not apprehended, as when a thief throws a gem into the ocean, thinking that it is only an imitation gem. But the offender would be held for the entire loss, if sentenced.
(e) Error about the person injured, even though invincible, probably does not excuse from restitution, if the intention was to harm a class (e.g., Sempronius intends to kill Balbus, because the latter is a policeman, but by accident he kills another policeman) or an individual (e.g., Caius intends to kill Titus and by mistake kills Claudius, the twin-brother of Titus).
(d) Error about the thing injured, even though invincible, probably does not excuse from restitution, if the intention was to do damage (e.g., Julius puts poison in a plate in order to kill his neighbor’s dog, but the cat takes the poison and is killed).
1765. Restitution for Damages That Are Only Venially Sinful but Seriously Harmful.--(a) When one injurious act is committed (as when through slight carelessness one sets fire to one’s neighbor’s chicken coop), some deny, but others affirm, the duty of restitution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for restitution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.
(b) If several injurious acts, which taken singly are slight but taken together are serious, were done to the same person (e.g., a waiter breaking dishes at various times while working for the same proprietor), restitution is due as soon as the sinner realizes the amount of harm he has caused; but it is disputed whether the obligation is grave or light. If the injuries were done to different persons (e.g., a boy breaking windows in many houses in the neighborhood), there is more probably only a light obligation.
1766. Restitution on Account of Law for Damages That Are Only Juridically Culpable.--(a) Before sentence of court there is no obligation of restitution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.
(b) After sentence of court there is an obligation of restitution, for the law which gives the court a right to impose it is reasonable, since juridical fault is often accompanied by theological fault, and moreover men will thus be led to a greater prudence in the care of their own goods and in respect for those of others.
1767. Restitution on Account of Contract for Damages That Are Only Juridically Culpable.--(a) Express contract obliges to restitution even for light fault (i.e., the omission of precautions taken by the more prudent), or most light fault (i.e., the omission of precautions taken by the most prudent only), or, if so stipulated, for no fault at all.
(b) Implied contract perhaps also obliges to restitution for juridical fault, for it seems that equity requires one to make good the losses caused by the absence of a care which the contract took for granted. Thus, if the advantage is with the bailor alone (e.g., gratuitous deposit), ordinary care is expected and the bailee is not held in danger to prefer the bailor’s goods to his own; if the advantage is with both parties (e.g., onerous deposit or loan), it seems that more than ordinary care is demanded and that usually the obligor may give preference to his own goods.
1768. Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.--(a) If there was theological fault, restitution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of restitution, since no injustice was done; but a court may oblige to damages.
1769. Two Cases in Which Culpability Seems Doubtful.--(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor’s barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make restitution.
(b) When one has culpably done or omitted something from which damage to another was foreseen, but has tried, though in vain, to prevent the damage after the cause was placed, restitution is due if the cause was physical (e.g., Claudius gave poison to Titus, and then moved by remorse gave an antidote, but Titus died), since the party who set the cause in operation is responsible; but if the cause was moral (e.g., Balbus ordered a gunman to beat up Caius, but withdrew the order, and the gunman on his own responsibility then assaulted Caius), restitution is not due when the revocation ends one’s influence upon the damage that ensues.
1770. Three Kinds of Unlawful Possessors.--The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:
(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);
(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);
(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).
1771. Obligations of the Possessor in Good Faith in Reference to the Property Itself.--(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.
(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.
(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.
1772. Obligations of the Possessor in Good Faith in Reference to the Fruits of the Property.--(a) He must restore the fruits of the thing itself that are in existence, for the thing fructifies to its owner. Hence, he should restore to the owner the natural fruits (e.g., the fruit on the owner’s trees) and the civil fruits (e.g., the money received from hire of the owner’s horse).
(b) He must restore the fruits of the thing itself which are not in existence, but from which he has been enriched (e.g., the net profit from last year’s crops which the possessor has in the bank).
(c) He is not obliged to restore the fruits of his own labor or industrial fruits (e.g., the extraordinary interest derived from the owner’s money through the good judgment and energy of the possessor), nor the fruits that he consumed without enrichment (e.g., the vegetables he gave away or wasted).
1773. Rights of the Possessor in Good Faith in Deducting Expenses.--(a) He may deduct for all expenses that have benefited the owner, that is, for all the money he spent in necessary or useful ways in preserving or caring for the property. (b) He may not deduct for expenses that have not benefited the owner, or which the owner would not have reasonably authorized, such as special beautification of the property. But he may take away such adornments added by him as can be removed without injury to the property.
1774. Obligations of the Possessor in Bad Faith in Reference to the Property Itself.--(a) If the property is still in his keeping, he must return it to the owner, for a thing calls for its owner. But if the actual possessor had the property from the thief and could not restore it to the owner without serious loss to himself, it is held by some that he could return it to the thief in order to recover his money.
(b) If the property has perished or restitution of it has become impossible, he must compensate the owner, even though he has not been enriched, unless the goods would have perished equally with the owner; for he is then the efficacious cause of the loss. The same principle may be applied to damages through deterioration. The civil law often holds the thief responsible, no matter how the goods perished in his hands.
(c) If the property is in possession of a third party who bought it in bad faith from the possessor in bad faith, the seller is not bound to restitution to his purchaser on the purchaser’s eviction, unless there was agreement to that effect; for he who buys, knowing that there is no good title, buys at his own risk.
1775. Obligation of the Possessor in Bad Faith in Reference to the Fruits of the Property.--(a) He must restore the natural and civil fruits, even though the owner would not have obtained them from the thing, but he may keep the industrial fruits.
(b) He must make restitution for the profits lost and the losses suffered by the owner through the unjust deprivation of his property, for these are damages of which the possessor was the unjust and efficacious cause.
1776. Obligations of the Possessor in Doubtful Faith Who Began Possession in Good Faith (Supervening Doubt).--(a) If he does not culpably neglect attempts to settle his doubt, he becomes a possessor in good faith. If the doubt is settled against him, he must restore (1771); if the doubt continues, he may retain possession and prescribe (i.e., acquire ownership through long exercise of ownership rights), for presumption favors the possessor, but he must he willing to restore, should another appear as the rightful owner.
(b) If he culpably neglects attempts to settle the doubt, he becomes a possessor in bad faith. If the doubt is settled against him, he must restore (1800), at least for the time during which his culpability was grave; if the doubt continues and its settlement is impossible through his fault, it seems that he should share ratably with another claimant according to the strength of the respective claims; if the doubt continues and there is no other claimant, it seems that he may act on the principle that presumption favors the possessor.
1777. Obligations of the Possessor in Doubtful Faith Who Began in Bad Faith (Antecedent Doubt).--(a) If the property came to the possessor in doubtful faith without legal title (e.g., by violence), he has the obligations of one in bad faith, for presumption favors the former possessor.
(b) If the property came to him by legal title (e.g., by gift or sale), but from a former possessor of doubtful or suspected faith (e.g., one who seemed to have the property through theft), he must attempt to settle the doubt. Should the doubt nevertheless continue, some think he should divide it with another probable claimant, but others believe he may retain all.
(e) If the property came to him by legal title and from a former possessor in good faith, he must attempt to settle the doubt; but if the doubt remains in spite of his inquiries, he may retain the property in good faith, as long as matters continue in the same state.
1778. Cooperators and Restitution.--Restitution is owed for cooperation in injustice when the cooperator becomes at least partially an unjust and efficacious cause of damage to another. It should be noted that this cooperation may be of a limited kind, as when it extends only to the mode of the damage, or when it is not indispensable to the commission of the injury.
(a) Thus, he who cooperates only as to the mode of injury is probably liable only for that damage which he added to the substantial damage. Thus, if Balbus intended to steal $10, and Claudius persuaded him to steal $20, it seems that the influence of Claudius extended only to the amount of $10.
(b) He who cooperates, but whose assistance is not necessary, is bound to restitution as a cooperator, since he is an unjust and efficacious cause of damage. Thus, if Caius steals for Sempronius, knowing that, should he refuse, Mercurius would carry out the orders of Sempronius, the readiness to steal on the part of Mercurius does not excuse Caius or make his act any less harmful.
1779. Positive cooperators in injury are bound to restitution when their act is the unjust and efficacious cause of the damage. The principal cases of positive cooperation are the following:
(a) a mandator is a superior who explicitly or implicitly commands an inferior subject to commit an act of injustice, as when a father bids his son to steal. The mandator bids another to act in his name, and therefore he is the principal and not the accessory or secondary cause of injury. He must indemnify both the victim and the agent for losses he caused them; but he is not liable if he effectively recalled his mandate before the damage was done;
(b) an advisor is one who through instruction or persuasion induces another person to commit an injury which is not done in the name of or for the benefit of the advisor himself. He must make restitution both to the person whose injury he recommended and to the person to whom he gave the advice for the damages he brought upon them. Those who give wrong advice in good faith, or who recall their advice before the damage is done, are generally excused from responsibility. Bad example does not seem to be equivalent to bad advice, and he who recommends a lesser evil only because he wishes to prevent a greater one is not an efficacious cause of the lesser evil (see 1502, 1503);
(c) an implicit advisor (palpo) is one who by flattery, excuse, blame, ridicule or other such indirect means leads another to commit injustice against a third party. The implicit advisor is bound to restitution for damages caused or reparation denied through his fault;
(d) a protector or encourager (receptans) is one who knowingly and willingly bestows upon a malefactor, as such, security or comfort, in order that the latter may do injury with greater confidence or omit restitution for evil already done. He is bound to restitution for the unjust damage or retention of property caused by him;
(e) a consenter is one who gives his vote, decision, or approval to injustice, or denies it to justice. He must recall his consent to iniquity before evil results from it, and he must make restitution for damages that depend on his conduct;
(f) a partaker in injustice is one who gives assistance in the commission of injustice, positively and physically, by sharing in the injury or in some previous or subsequent act naturally connected with it. If he is a cooperator in unjust damage, he must indemnify the injured party; if he is a cooperator in unjust retention of property, he must give back to the owner the stolen goods received by him (1774).
1780. Negative cooperators are those who by their silence or inaction permit an injury to be done or to go unrepaired. They are bound to restitution for the damages caused by them; but it seems that per se at least they are not bound to restitution for bribes taken by them or fines lost through their fault. Their responsibility for damages supposes the usual conditions, namely: (a) they must be the efficacious causes of damage, and hence if their silence or inaction is involuntary, or if outcry or resistance would be useless they are not responsible; (b) they must be unjust causes, that is, there must be an obligation to act owed by reason of strict right, contract, or implied contract. Examples are confessors who culpably neglect to give penitents needed spiritual advice, parents who permit damage to be done by their children who have not the use of reason, voters who absent themselves and thus cause damage they were bound by contract to prevent, owners of animals who sinfully permit their beasts to ravage the fields of another person, doorkeepers who allow thieves to enter a house under their charge, collectors who permit bills to go unpaid. But if the obligation is owed by reason of some other virtue than commutative justice (e.g., one is bound only in charity to turn in a fire alarm when one notices a fire, if one is not the custodian of the house), one sins, and at times gravely, by inaction; but there is no duty of restitution.
1781. The Circumstances of Restitution.--By the circumstances of restitution are understood the persons by whom and to whom compensation is to be made, the things to be restored, the manner, time and place of restitution.
1782. The persons bound to make restitution are all those who singly or cooperatively commit injustice. But when several commit injustice together, the following kinds of causes of the injustice must be distinguished:
(a) the causes are equal when there is no subordination among the cooperators; they are unequal when one is a principal upon whom the others depend as secondary causes or instruments (e.g., when one hires thieves to steal for one);
(b) the causes are considered as total causes of the injury when they are principal causes, or equal but indispensable cooperators, or conspirators; and perhaps also if they are sufficient causes (e.g., Caius and Sempronius each fire at a neighbor’s cow and each inflicts a mortal wound), or if the thing damaged is either not divided (such as a vineyard) or indivisible (such as a painting). In other causes cooperators are considered as partial causes of the injury.
1783. Cooperators in damage are bound to restitution either in solidum or pro rata.
(a) Thus, they are bound in solidum (i.e., jointly and severally) for all the loss when they are total causes of the damage, But the principal cause is bound absolutely, the secondary or equal cause only conditionally, that is, the principal must pay all the restitution himself, the others must pay all only when the principal or other associates fail to do their duty.
(b) They are bound pro rata (i.e., each one according to his share) when they are only partial causes of the damage. The obligation of restitution in solidum should not be imposed, if it is uncertain, or if the cooperator is in good faith and the admonition would only produce harm.
1784. The order of restitution among cooperators in injury is according to the priority of the obligation of one to that of another, in the sense that one is obliged to pay all and the other is obliged only in the former’s default. This order of priority in obligation is in force when many cooperators are bound in solidum and when they cooperated in different ways (e.g., one as possessor, another as advisor, another as performer, etc.). The order generally given by moralists is as follows:
(a) the possessor is bound first of all, since he has the goods of another and the goods call for their owner;
(b) the cooperators are bound next in the following order: the originator (such as a perpetrator acting in his own name, or a mandator); the perpetrator acting in the name of another; the others who aided the commission of the act (such as advisors, flatterers, etc.); those who did not prevent or resist injustice.
1785. The obligations of cooperators when restitution in full is made by one of their number, or when condonation of debt is made to one of their number, are as follows: (a) if restitution was due pro rata, the other cooperators must indemnify their associate who paid all, or must pay their shares to the injured party who gave condonation only to one of their group;
(b) if restitution was due in solidum, payment by or condonation to a principal cause frees the secondary causes; but payment by or condonation to a secondary cause does not exempt a principal cause, and the latter is still held either to the secondary cause or to the injured party, as the case may be; payment by or condonation to an equal cause does not exempt the other equal causes.
1786. The person to whom restitution must be made is the person whose strict right has been violated, or, in his absence, it is society. But the following cases should be distinguished:
(a) when the injured person is known for certain and his right is certain, restitution should be made to the injured person or his representatives or successors, or, if this is not possible, to charitable or pious causes;
(b) when the injured person is entirely unknown, if the one who is the cause of the loss is in good faith, his obligations are those of a possessor in good faith; but if he is in bad faith, the common opinion is that he is bound, at least from customary law, to make restitution by giving to the poor or to religion;
(c) when the injured person is partly unknown, the person who is the cause of the loss should make restitution to the best of his ability. If the doubt extends to only a few persons (say four or five), any one of whom may be the injured person, restitution should be divided in the best way possible among these persons; if the doubt extends to many, but the injured persons were only a few, it seems that restitution may be made by giving to charity or religion either in the place of the injury or elsewhere; if the doubt extends to many, and the injured persons were many inhabitants of the locality, restitution must be made if possible to the injured parties themselves, otherwise to some public cause of the local community.
1787. Order of Preference Among Creditors.--The natural order of preference is to be shown to creditors when the debtor is unable to pay them all.
(a) Those who have a right in re (e.g., those whose property is held by the debtor) have precedence over those who have only a right ad rem (e.g., those who are creditors from contract).
(b) Creditors from onerous contract or delinquency, it is generally admitted, have priority over creditors from gratuitous contract.
(c) Creditors from delinquency and creditors from onerous contract, according to what seems to be the common opinion, are equal in rights and should be settled with pro rata.
(d) Debts that are certain have priority over debts that are uncertain, according to some; others deny this, but admit that the uncertain debts need be paid only in proportion to their probability.
(e) Creditors who are certain are by some preferred to creditors who are uncertain; but others think that payment to the poor, in place of the unknown creditor, is the latter’s presumed will, and that it has an equal standing with debts owed to known creditors.
(f) Poor creditors have no just claim to preference over rich creditors; but charity dictates that, when the poor creditor is in distress, he should be given the preference.
(g) Earlier creditors have a preference over later creditors in a real claim, but it is disputed whether this holds also in a personal claim.
(h) The creditor who asks for a settlement sooner has a preference, if the petition is made juridically, and perhaps also if it is made privately.
1788. The order of preference among creditors according to civil law is generally as follows: (a) proprietary creditors (i.e., those whose property is held by the debtor); (b) privileged creditors (i.e., those whose debts have a special urgency, such as judicial expenses, doctors’ bills, wages for hired help, living costs, etc.); (c) hypothecatory creditors (i.e., those who have claims against the property of the debtor, in the form of liens, mortgages, etc.); (d) common creditors (i.e., all those who are paid after the previous creditors have been satisfied). American law contains provisions in regard to dispositions of property made during the four months before bankruptcy is tiled, so as to protect the creditors of a person who is insolvent. The property of a bankrupt is placed in the hands of an assignee and allowance is made for the debtor’s needs and perfected liens (i.e., charges legally made upon property for debt). The property is then subject to levy by the creditors as follows: maintenance expenses, legal fees, costs of administration, wages of workmen, taxes, debts having priority under Federal or State law.
1789. The “Thing” to Be Restored.--(a) In case of unjust possession, the identical object must be restored, if it has an individual value; otherwise it may be restored in its equivalent. (b) In case of contract, the identical object must be restored, if that is the agreement (e.g., in loan of a chattel, or deposit), otherwise it may be restored in its equivalent (e.g., in loan of money).
1790. The “Amount” of Restitution in Certain Cases.--(a) When an Object Had Various Values During the Time of Its Possession in Bad Faith.--If the change was from an internal cause and was for the better (e.g., the calf stolen by a thief has become a cow), the return must be made in the improved state; if the change was from an internal cause, and was for the worse but would have happened in any case (e.g., the cow taken by the thief has become old), return must be made in the actual state; if the change was from an internal cause and for the worse, which would not have happened had the object remained with the owner (e.g., a cow taken by a thief has become lame on account of the thief’s carelessness), return must be made also for the deterioration. If the change was from an external cause (e.g., the wine taken by a thief has risen and declined in value several times), it seems that practically nothing more can be imposed by way of restitution than the value the object had when taken.
(b) When Unjust Damage has been Done.--If the damage was caused positively, the injured person must be indemnified entirely, if the damage was caused negatively, the injured party should be indemnified more or less according to the reasonable expectation he had of the gain of which he was deprived.
1791. The “Manner” of Making Restitution.--The general rule is that it should be made in such a way that the injury will be repaired and the injured person indemnified for his loss. Generally speaking, there is freedom of choice as to various forms in the modes of restitution. Thus, it may be made publicly or secretly, directly or through an intermediary, positively (by payment) or negatively (by cancellation of a debt). It may even be made without the knowledge and intention of the parties. (a) Thus, the injured party may be compensated, even though he is unaware that he was cheated or that he is being paid back; (b) the offender may restore, even though he does not know he is doing so (e.g., if he pays while intoxicated), and probably even though he has no express intention of doing so (e.g., if he makes a present of $10, and then remembers that he owed damages to the amount of $10).
1792. Second Restitution.--Natural law must be applied to certain cases in which restitution sent through an intermediary perishes on the way through no fault of the debtor. (a) If the debt is owed on account of possession in good faith, the debtor is not bound to a second restitution. (b) If the debt is owed on account of contract, the goods perish to the owner. Thus, if the contract was one of loan, the loss must be borne by the lender; if it was one of sale, by the seller. (e) If the debt is owed on account of delinquency, there is an obligation to a second restitution, unless the injured party assumed the risk of transmission. It is held as probable that the choice of the confessor as intermediary for restitution has the consent of the injured party, and hence that, if the restitution perishes on the way through chance or the fault of a third party, there is no duty of second restitution.
1793. The “Time” When Restitution Must Be Made.--(a) Internal restitution, or the purpose of restoring, must be made at once, that is, as soon as one adverts to the necessity of this resolve. (b) External restitution, or the fulfillment of the resolution, must be made at the first suitable opportunity.
1794. Unjust Refusal to Make Restitution or Pay Bills.--(a) Those who unjustly refuse to make restitution or to pay their bills at the proper time are guilty of mortal or venial sin according to the damage their refusal causes to the creditor. (b) They are not worthy of absolution if there is serious bad faith on their part, as when they have many times broken their promises, or when they refuse to pay even the part or installment which is within their power. (c) They are bound to additional damages for the losses caused by the unjustifiable delay.
1795. The “Place” Where Restitution Must Be Made.--(a) He who is a debtor on account of injury must make restitution at the place where the thing would be were it not for the injury. (b) He who is a debtor on account of possession in good faith should notify the owner where the property is, but he is not obliged to bring it to the owner. (c) He who is a debtor on account of contract must abide by the agreement, or by the statutes that regulate the contract. Thus, in this country the place of delivery in sales is according to law the seller’s place of business or his residence.
1796. Burden of Expense or Loss When Restitution Is Sent to the Place of the Creditor.--(a) If the obligation of restitution arises from injury, the debtor is generally bound to pay the transportation and to stand the loss when the goods perish in transit. (b) If the obligation arises from contract, the expenses and losses must be borne according to the agreement.
If nothing was stipulated, it seems equitable that the expenses of transportation be borne by the party who benefits or who requested the contract. According to the Sales Act in the United States, the seller is the loser when goods perish in transit, if a place of delivery had been agreed on; but the buyer is the loser when in pursuance of the contract the goods had been delivered to a carrier for transmission to the buyer (see 1888 d).
1797. The Causes That Excuse Temporarily from Restitution.--These causes can be reduced to two, namely, physical and moral impossibility. (a) Physical impossibility exists when the debtor has not the means to pay and cannot secure them; and it excuses as long as it continues. One who is bankrupt is excused from restitution during the continuance of his insolvency; if he later becomes able to pay, it seems to some that the civil declaration of bankruptcy according to the law of the country releases him from further payment, unless his bankruptcy was fraudulent or due to culpable neglect. (b) Moral impossibility exists when the debtor has the means, but cannot pay immediately without incurring a loss of a higher order (e.g., if he pays the small sum of money, he will lose his own excellent reputation), or without suffering a greater loss in his own goods of the same order (e.g., if he pays the money, he will be reduced to starvation), or without surely bringing on a far greater evil than delay of restitution to the creditor or a third party (e.g., if a stolen weapon is returned to its owner, he will commit suicide or murder).
1798. The Causes That Excuse Permanently from Restitution.--These causes can also be reduced to two general ones, namely, the cessation of the object and the termination of the obligation through the act of the creditor, or of the debtor, or of authority.
(a) Thus, the cessation of the object releases from the duty of restitution whenever the object perishes to its owner, as when it is lost by a possessor in good faith who has not been enriched by it, or even by a possessor in bad faith, if it would have been lost equally by the owner (see 1771, 1774).
(b) The termination of obligation through the act of the creditor occurs when the creditor freely and lawfully excused the debtor from payment. In some cases condonation may ordinarily be presumed, either on account of the affection of the creditor for the debtor (e.g., in case of debts owed by children to their parents) or on account of the familiar relationship between the parties and the smallness of the debt (e.g., in case of appropriation by servants or employees of some unimportant articles not kept under lock and key), or on account of the indigence of the debtor and the smallness of the damage (e.g., in case of trifling harm to goods of a wealthy person, if there was no great malice and the debtor is very poor).
(c) The termination of obligation is also effected by equivalent payment, which in certain cases is made by payment of the creditor’s creditor, or the cancellation of an equal debt owed the debtor by the creditor, and perhaps also by a gift made the creditor by the debtor and equal in value to the debt. Occult compensation by the creditor is the secret taking by him of what he is entitled to when the debtor will not give it of his own accord. This is lawful when the debt is certain, other means of recovery impossible, and the compensation not injurious; but it covers restitution, and hence the creditor cannot accept another payment from the debtor.
(d) The termination of obligation is also effected by the act of competent authority. Thus, judicial declaration frees from the duty of restitution a person who has lawfully and in good faith received certain goods as damages or award; prescription (see 1875) gives a clear title to property held by adverse possession over a certain number of years, and it frees from the duty of payment, at least in certain cases (though not in the United States); papal composition for good reasons exempts from their obligation those who owe restitution to pious causes or to church property injured by them.
1799. Condonation of the domestic thefts of wives and children of the family cannot be presumed in all cases (see 1903).
(a) Thus, if the things stolen are articles of food and drink (or tobacco), and were consumed by the members of the family, there is no duty of restitution, since the father or husband is then unwilling, not so much that these things should be taken, as that they should be taken furtively.
(b) If the things taken do not fall under the class of eatables and are still in the possession of the thief, they should be restored. Hence, if a son steals money from his father in order to have the means for debauchery, he must give back that money.
(c) If the things taken were not eatables, but were of great value and have been consumed or alienated, it will depend on circumstances whether restitution is obligatory or not. Thus, if the father thinks much of the son who took the money and the family does not miss it much, condonation may perhaps be taken for granted; but if the son is not on good terms with his father, or if the theft is very harmful to the family, restitution may be due.
1800. Excuse from Restitution on Account of Doubtfulness of Obligation.--(a) One who doubts positively and in good faith whether or not he did damage to another is excused from restitution if the doubt is about the fact of the damage (e.g., whether his competitor lost business) or about his own culpability (e.g., whether he circulated a calumny about his competitor); he is probably held to restitution pro rata of the doubt, if the doubt is about the responsibility of his culpable act for the damage that followed (e.g., whether his calumny or the poorness of the competitor’s wares caused the falling off in business); he is probably held to only his share, if the doubt is whether his culpable act was responsible for the whole or only a part of the damage (e.g., whether his calumny caused all the damage, in view of the fact that others were also spreading calumnies).
(b) One who doubts positively and in good faith whether the restitution owed by him has been paid (e.g., whether his fellows in calumny have paid their portions of restitution, whether he has paid a bill for goods or services received) is held to full payment by some, to part (pro rata) payment by others, to nothing by others. Some moralists think the presumption favors the creditor, others that it favors the debtor, others that it favors neither and that a compromise is the right solution.
1801. Doubt does not excuse restitution in the following cases: (a) when it is merely negative and the presumption is against the doubter (e.g., when a person knows that he purchased and received goods, but does not know whether or not he paid for them, and has no reason to think he did pay); (b) when it is in bad faith, that is, knowingly or intentionally produced (e.g., when two men simultaneously fire at a neighbor’s cow, knowing that it will thus become impossible to determine the author of the damage).
1802. Special Cases.--There are some special cases of restitution for negative injury in thwarting another’s prospects, or for positive injury to goods of fortune, of body, of soul, or of spirit.
(a) For Frustration of Another’s Good.--Restitution is due for keeping another from a good to which he has a strict right (e.g., an office to which he has been chosen, property for which he has paid), or for using force, fraud, bribes, or other unjust means to keep another from a good to which he has a non-strict right (e.g., a position for which he has made application, a gift which another contemplates bestowing on him). The amount of restitution should be calculated according to the previous probability of success on the part of the injured party and the permanent results of the injury.
(b) For Injury Done to Goods of Fortune.--Private injuries are spoken of elsewhere (see 1762 sqq.), and now we consider only injuries that are in some way public. Commutative injustice entailing restitution to the community is committed by damage to public property, breach of contract made with the community, unjust means employed to prevent the government from obtaining its dues, unjust cooperation in any of the aforementioned acts; commutative injustice entailing reparation to individuals is committed when the transgression of a law places an undue burden on a fellow-citizen (e.g., when one unjustly escapes military or jury service and causes a substitute to be called who would not have been called otherwise, or when one unjustly evades one’s taxes and thereby certainly causes the taxes of others to be raised). If a tax law is just, it obliges in conscience, but whether as penal or preceptive, whether in virtue of legal or commutative justice, is a much debated question; and hence the question of sin and of restitution due is not easily settled. Impossibility or a general and admitted custom excuse from restitution (see 2637 sqq.).
(c) For Injury Done to Goods of Body or Personal Goods.--According to one view no restitution is due for merely personal injuries, since the damage cannot be repaired by a good of the same kind as that which was taken away (e.g., the murderer cannot give back life to his victim); but according to another view restitution is due for these injuries, since justice requires that every kind of damage be repaired as far as possible (see 1751 and 2090).
1803. Restitution for Various Kinds of Damage Done to Persons.--(a) For Bodily Injury by Unjust Homicide or Mutilation.--The offender (or his heirs) is obliged to restitution to the victim (or his heirs or dependents) for spiritual loss (such as death without the Sacraments), probably for personal loss (such as pain, facial disfigurement), and for real losses due to the injury (such as hospital expenses, loss of support by the widow and orphans). The spiritual loss is compensated by spiritual goods, such as suffrages for the departed, the personal loss by compensation suited to the circumstances (e.g., money employment), the real loss by payment of medical expenses, loss of time, support lost by dependents, etc. The offender is not liable for damages of which he is not the unjust cause (e.g., the alms that will be lost by poor persons on account of homicide, since they have no strict right to the alms), or the efficacious cause (e.g., the pay that will be lost by creditors on account of homicide, for as a rule the slayer cannot foresee this), nor for damages which the injured person clearly condones.
(b) For Bodily Injuries by Fornication or Adultery.--In case of fornication the offender owes restitution to the person seduced and also at times to the latter’s parents, and both sinners are bound to support their illegitimate child. The form of the compensation will depend much on circumstances, but in general it should be either marriage with the person seduced or some kind of pecuniary compensation. It should be noted that a promise to marry, even though it is canonically valid, gives no action to enforce marriage, but even an invalid engagement gives rise to action for unjust material damages, such as loss of chance to marry or loss of money spent in view of the marriage (see Canon 1017). In case of adultery the guilty party or parties are bound to make restitution to the injured husband if an illegitimate child is being reared at his expense, and also to the legitimate children for injuries to their strict rights, as in the diminished inheritance received from their parents on account of the illegitimate child. A child is not obliged to accept the word of his mother that he is illegitimate, but if he is certain about his illegitimacy, he may not take that to which he is not entitled. In restitution for fornication or adultery, care must be taken to preserve the good names of all the parties concerned.
(c) For Injuries of Soul.--In case of unjust and efficacious damage to physical goods (e.g., when one by fraud or force administers to another drugs or intoxicants that take away the use of reason or self-control, when a professor neglects his office of teaching or teaches error), restitution is certainly due for any material damages that result, and probably for the personal injury alone. In case of damage to spiritual goods, by inducement to commit sin or by dissuasion from good, restitution is due when the influence exerted was unjust (e.g., by fraud, force, threats), not when it was merely uncharitable (e.g., by advice, persuasion, request, example). Restitution for spiritual damage may be made negatively, that is, by removal of the unjust influence; but if a person who was seduced has in consequence become a hardened sinner, it seems that restitution should be made positively, that is, by counsels, requests, prayers to God, and other prudent means calculated to recall the injured party to a life of virtue.
Art. 4: THE VICES OPPOSED TO COMMUTATIVE AND DISTRIBUTIVE JUSTICE
(Summa Theologica, II-II, qq. 63-78.)
1804. The Vice Opposed to Distributive Justice.--Favoritism (i.e., acceptance of persons, partiality) is defined as “a species of injustice which moves one to distribute the common goods or burdens of society, not according to merit or fitness, but according to some other and impertinent standard.”
(a) The common goods include offices, honors, functions, while the common burdens include taxes, contributions, and penalties.
(b) The common goods of which we now speak are those that belong to society and that must be portioned out to its members justly. Hence, there is no question of goods that belong to private persons, which the owners are not obliged to give to others unless it be in virtue of charity or liberality. A rich man is not guilty of acceptance of persons, if he bestows his largesses on those who are less in need or less deserving, but more acceptable to himself; and God is not unjust when he gives unequal graces to those who are equally sinners (Matt., xx. 14, 15).
(c) The right standard of just distribution is merit or fitness, as when an applicant is appointed to the post of teacher or superior on account of good character and knowledge. Any other standard which leaves merit and fitness out of consideration is unjust, as when a public official selects for offices or honors, not those who have worked the hardest or who give the most promise, but those who have more money or who are related to himself.
1805. The Sinfulness of Favoritism from Revelation.--In Holy Scripture favoritism is reproved (“How long will you judge unjustly and accept the persons of the wicked?” Psalm lxxi. 2), and impartiality is praised (“Thou art a true speaker and teachest the way of God in truth, neither carest Thou for any man, for Thou dost not regard the person of man,” Matt., xxii. 16; “Masters, know that the Lord both of servants and you is in heaven, and there is no respect of persons with Him,” Eph., vi. 9). Distributive justice is commanded in many passages of Holy Writ (“Consider not the person of the poor, nor honor the countenance of the mighty; but judge thy neighbor according to justice,” Levit. xix. 15; “There shall be no difference of persons, you shall hear the little as well as the great, neither shall you respect any man’s person,” Deut., i. 17; “Thou shalt not accept persons nor gifts,” Deut., xvi. 19; cfr. James, ii. 1 sqq.).
1806. The Sinfulness of Favoritism from Reason.--Favoritism transgresses a divine command and substitutes personal will for right in the treatment of subjects by superiors. Hence, it is morally evil, for disobedience is sinful in the high as well as in the low, and violation of rights is unjust whether the rights be of the community or of the individual.
1807. The Gravity of the Sin of Favoritism.--(a) From its nature, favoritism is a mortal sin; for it is a form of injustice (see 1746), and indeed it is no less damaging than commutative injustice (e.g., theft) and is often accompanied by the latter. (b) From its matter and from the lack of deliberation or consent it may be venial. Thus, if favoritism is shown in a trifling matter (e.g., in conferring a post that is unremunerative and unimportant) or in a small degree (e.g., in preferring an applicant who is only slightly less worthy), there is only venial injustice.
1808. Distributive injustice is also frequently accompanied by commutative injustice.
(a) Thus, a first class of common goods that are distributed are those intended primarily for the common good, and only indirectly and secondarily for the good of individuals, such as public offices, dignities, and benefices. He who distributes these offices unfairly, by appointing unworthy persons, or by appointing the less worthy when he is under contract to appoint the more worthy, violates commutative justice and is held to restitution to the community; but the worthy or more worthy persons slighted had no strict right, and hence no restitution is due them, unless there was a compact with them or unjust means were used to exclude them (see 1755).
(b) A second class of common goods are those that are intended primarily for the benefit of individuals, such as a fund created for the relief of the destitute or afflicted or pensions set aside for those who have deserved well of society. He who distributes these goods unfairly is guilty of commutative injustice against private persons, since the goods were destined for them, and they had a right ad rem to the goods, and hence to these persons restitution is owed.
1809. Favoritism in Spiritual Matters.--(a) Partiality in granting favors is sinful, and gravely so when the matter is serious. Examples are the grant to the unworthy of the power of Orders or of jurisdiction, the concession of permissions and dispensations to one’s friends that are denied to others. (b) Partiality in imposing burdens is also sinful, as when a prelate issues an onerous command, and grants exemption to his friends. But if the thing commanded is obligatory already by reason of law, it should be observed in spite of the favoritism of the prelate.
1810. Who is to be considered as more worthy for appointments in spiritual matters?
(a) The more worthy person is the one who will better serve the common good in the office. Hence, the more pious or the more learned man is not necessarily the more worthy, for another may have greater industry, influence, executive ability, initiative, prudence, experience, etc., and so be better suited to fill the position. But no person should be considered as worthy of spiritual offices unless his moral character is good, and excellence in temporal things does not compensate for negligence in spiritual matters.
(b) The more worthy person is the one who is more available when the appointment has to be made. Hence, the one who is better gifted for the office is not necessarily the more worthy, for another may be better known and it may be impossible to make investigations and comparisons at the moment.
1811. Opinion of the Applicant or Appointee about His Own Fitness.--(a) The applicant need not think that he is worthy or the most worthy; indeed, according to St. Thomas, it would be presumptuous for him to think so highly of himself, and he would thus become unworthy. It suffices, then, that the applicant have in mind only to try for the office, leaving the decision about fitness to the examiner or appointer.
(b) The acceptor who feels that he is unworthy or less worthy is not guilty of injustice; for he is not the judge of his own abilities and may rely on the judgment of those who appoint him. Moreover, he can trust to divine grace and his own efforts to make up for any deficiency or inferiority of which he is conscious. But it seems that, if the appointee were absolutely certain that his appointment was unjust, he would be bound to surrender his office, if this were possible.
1812. Favoritism in Secular Matters.--Do the conclusions in reference to ecclesiastical offices apply also to secular offices?
(a) In both cases distributive justice is violated by favoritism, for the standard followed is not merit or fitness, and thus the more worthy persons are injured. The opinion that civil society has dominion of public offices and therefore the right to distribute them at will, without regard to the merits or fitness of persons selected, is not probable; for civil rulers, like spiritual rulers, should consider themselves as ministers and dispensers only (I Cor., iv. 1), and even if they had dominion over offices, they would be bound to use that power for the benefit of the public for whom they rule.
(b) In both cases also commutative justice is violated in some instances, the offense being either against society or against individuals (see 1755, 1808). Thus, an official who appoints a subordinate knowing that he will oppress and rob, is responsible and bound to restitution to the victims as being a cooperator in injustice.
1813. Favoritism in Marks of Esteem or Honor Shown to Others.--(a) There is no favoritism if honor and esteem are shown to those who deserve it on account of their virtue or position. Hence, it is not unjust but just to show special marks of veneration to holy persons, and even to those who are not holy, but whose authority or age deserves respect (such as rulers and prelates, parents and aged men).
(b) There is favoritism if honor and esteem are shown to those who have no genuine claim to it on account of goodness or rank. Thus, wealthy men are worthy of special respect on account of goodness when they employ their riches in useful ways, or on account of preeminence in the community in rank, ability, influence, etc., and he who shows special courtesy or attention to the wealthy for reasons such as these is not a respector of persons. But if mere wealth is worshipped, sinful favoritism is shown, as when a villainous rich man is honored and a worthy poor man is despised, or well-dressed persons are conducted honorably to comfortable seats in church and good persons whose attire is poor are treated with contempt (James, ii).
1814. Favoritism in Judges (Umpires, Arbitrators) and the Like.--(a) In the course of a trial there may be favoritism in matters left to the judge’s discretion. This does not happen, however, when the discretionary power is intended for the judge’s own benefit (e.g., when on a free day he decides to hear one side rather than the other), but when it is meant for the benefit of the litigants (e.g., when he grants to one side a longer time for preparation of its case than to the other side and for no reason pertinent to the matter at issue).
(b) In the sentence pronounced there is favoritism, if the decision is not based on the merits of the litigants, but on extraneous considerations, such as the fact that one of the parties is a friend or relative of the judge or arbitrator, or belongs to the same political party or business, etc.: “It is not good to accept the person of the wicked, to decline from the truth of judgment” (Prov., xviii. 5). If the arguments are about evenly balanced on both sides, it would be favoritism to decide in favor of one against the other. Alexander VII condemned the proposition that a judge may take money in such a case of doubt to decide for one party (Denzinger, n. 1126).
1815. The Vices against Commutative Justice.--These vices can be classified under two general heads: (a) the vices committed in involuntary commutations (see 1748), which include deeds against the person (such as homicide, mutilation, imprisonment) and against property (such as theft and rapine), and unjust words, whether spoken during judicial process (by judges, advocates, witnesses, etc.), or outside of judicial process (such as contumely, detraction, etc); (b) vices committed in voluntary commutations (see 1748), which include fraud and usury.
1816. Homicide.--Life destroyed is either that of an irrational being (i.e., of a plant or beast) or of a rational being. In the latter case we have homicide, which is defined as follows: “an act or omission of a human being that is the efficacious cause (see 1763) of the death of a human being.” A parent who denies his child the food, remedies or climate which it needs and which he can afford commits homicide by omission; a physician who practises abortion commits homicide by act. The following distinctions of homicide have a bearing on its substantial morality (i.e., its lawfulness or unlawfulness):
(a) in reference to the intention, homicide is either voluntary or involuntary, and voluntary homicide is intended either as a punishment or as a defense;
(b) in reference to the slayer, homicide is either the act of a public or of a private person, of a cleric or of a layman;
(c) in reference to the person slain, homicide is either the killing of one who is guilty or of one who is innocent, either the killing of a neighbor or of self (suicide);
(d) in reference to the manner, homicide is either direct or indirect, according as the action from which death results is from its nature (finis operis) productive of death or of some other effect. Thus, it is directly homicidal to practise embryotomy (i.e., the destruction of the vital organs of a fetus) or abortion (i.e., the ejection of a fetus at a stage of development when it is unable to live outside the mother), but it is not directly homicidal to give a pregnant woman remedies necessary for her life, although harmful to the fetus; for the object or purpose of the former is to kill, of the latter to cure.
1817. Other distinctions of homicide have a bearing on its added or accidental malice.
(a) A new species of sin is added to that of injustice when other virtues are offended against. Thus, the virtue of piety is violated when the victim is a person to whom the slayer owed special respect and devotedness, as in parricide, regicide, fratricide, uxoricide; the virtue of religion is offended when murder is committed in a church.
(b) An aggravating circumstance is added by the greater deliberation with which the homicide is planned, or the greater treachery or cruelty with which it is executed (e.g., assassination, death by starvation). Some circumstances, however, may be morally indifferent, such as the fact that the victim is killed by one kind of poison rather than another.
1818. The Killing of Animals (or Vegetation).--(a) In itself, the killing of animals is not sinful; for animals are made for the use of man. Hence, it is lawful to kill, not only harmful animals, such as those that prey on human beings or breed pestilence or destroy property, etc., but also other animals, when their death is necessary for some good purpose, such as the provision of food, clothing or medicine for man.
(b) In its circumstances, the killing of animals may be sinful, and even gravely sinful, as when one kills the animals of one’s neighbor (Exod, xxii. 10, 11), or hunts against the law, or injures society by prodigal destruction of animal or plant life, or kills animals in cruel ways. The skinning of animals alive, in order to secure finer-looking furs to satisfy the vanity of women, is an inhuman barbarism of the worst type that should be reprobated by everybody.
1819. When Homicide Is Lawful.--Killing of human beings is lawful in two cases. (a) It is lawful when the common safety requires that the State inflict death for a crime (capital punishment); for just as it is lawful to amputate a gangrenous member which threatens to destroy the body, so is it lawful to remove from human society by death an individual who menaces the safety of the community. (b) It is lawful when the safety of an individual demands that he kill an unjust aggressor (self-defense); for a man owes his first duty to his own life in such a case, and the aggressor in making a deadly attack voluntarily assumes the risk of being killed. It is more correct, however, to say here that it is lawful to defend one’s life with resultant death to the offender (as will be explained below, in 1826, 1828, 1834).
1820. Arguments for the Lawfulness of Capital Punishment.--(a) Scripture.--In the Old Testament the death sentence was prescribed for certain more serious crimes, such as murder (“whosoever shall shed man’s blood, his blood shall be shed,” Gen., ix. 6); in the New Testament Our Lord recognizes that the power of a judge to sentence to death comes from above (John, xix. 10), and St. Paul declares that princes do not wield the sword without reason, but act as ministers of God when they punish evil-doers (Rom., xiii. 4).
(b) Tradition.--The Church has always taught the lawfulness of capital punishment and rejected contrary errors, as in the case of the Waldensians condemned by Innocent III.
(c) Reason.--The State has both the duty and the right to promote the common good and to defend it against its enemies, whether by war against external foes or by coercive measures against internal disturbers of the peace. Now, the experience of all the centuries and of all countries has shown that, generally speaking, the lives of law-abiding persons and the general peace are not sufficiently protected unless the supreme penalty be appointed for certain crimes.
1821. Though lawful, capital punishment is not always necessary; for it is a means to an end, and it may be omitted, therefore, when the end can be obtained by the use of other and less severe means.
(a) Thus, a general suspension of the capital punishment is lawful in a community whose members are peaceful and not inclined to violence or other crimes subversive of law and order. Whether such ideal conditions exist today may be doubted, and indeed some countries that abolished the death penalty have found that this proved an incentive to crime and they were forced to restore the former laws.
(b) A particular exemption from capital punishment is lawful, when there are good reasons recognized by law for commutation or clemency. This has been the practice of governments throughout history, and is justified when it furthers the common welfare, or at least shows mercy to a deserving individual without harm to society. But a judge has to condemn when the law and the facts call for condemnation, and the authority in whom the pardoning power is vested has to use his power prudently, lest he encourage lawlessness.
1822. It is not morally lawful to put criminals to death unless the following conditions are present:
(a) the crime must be external and of such a character that the public welfare requires the supreme punishment, either on account of the enormity of the act (e.g., murder), or on account of its danger (e.g., sleeping at one’s post in time of war). Further, the crime must be certain and sufficiently established, for, since the punishment should fit the offense and the law presumes innocence until guilt is proved, no one should be sentenced to death except for a serious and certain crime. The Fifth Amendment to the American Constitution declares that no person shall be deprived of life, liberty or property without due process of law;
(b) the sentence of death and its execution should be performed by those who have public authority for these acts and in the manner required by law. For capital punishment is a means of self-defense used by society, and its use pertains there fore to the representatives of society. Moreover, if private individuals exercised this function, accused persons would not receive the consideration of their rights or the opportunity of defense due them, and the public peace would be overthrown by murders of revenge committed in the name of justice.
(c) the penalty should be carried out in a humane and Christian manner, as is manifest. The convicted man should be allowed time and opportunity to make his peace with God and, if possible, to say farewell to relatives. Slow and agonizing forms of killing are of course entirely wrong, no matter how wicked the criminal who is being executed. The American law and other laws do not permit a pregnant woman to be executed until she has delivered her child.
1823. Unlawful Killing of Offenders.--The killing of offenders is, therefore, unlawful in the following cases:
(a) when the offense is not serious or fully deliberate (e.g., involuntary manslaughter), or when it has not been sufficiently established (e.g., if it is not certain that the supposed victim of murder is dead or that he died from a homicidal act). In civilized countries today the law inflicts capital punishment only for the most serious crimes, and the State has to prove its case beyond reasonable doubt before the punishment can be decreed. But in the past death was often the penalty for horse- or sheep-stealing, or even smaller offenses, and in times of excitement men have sometimes been sentenced to death without a fair trial;
(b) when the sentence of death is not pronounced or executed legally. Those who lynch the perpetrators of heinous crimes are often in good faith, especially if the processes of the law are too slow or uncertain, but since they act without authority, their deed is really murder. The same is true of a husband who kills his wife taken in adultery, of the relative of a seduced girl who kills the seducer, of an officer of the law who unnecessarily or without authorization kills a man sentenced to death when the latter is trying to escape. The State has the right, though, to declare a notorious malefactor outlawed, and thus to give to private citizens the right to take him dead or alive, or to kill him on sight; but it is clear that the exercise of this right is a dangerous remedy and one to be used sparingly;
(c) when the mode of killing or the circumstances are repugnant to Christian feeling. Today capital punishment is generally inflicted in a humane manner, but history records many cruel forms of execution, as when men were hanged, drawn and quartered, or burned at the stake, or put to death amid the jeers and curses of the populace.
1824. Is Tyrannicide Lawful?--(a) If the ruler is a tyrant in act (that is, one who has a lawful title to rule but who abuses his authority), it is not lawful to kill him on account of his misdeeds or crimes, since the subject has not the authority to act in the name of the nation (Rom., xiii. 1 sqq.; I Peter, ii. 18). In case of self-defense, however, as when the tyrant unjustly makes a personal attempt on the life of a citizen, the latter has the right to kill. The Council of Constance condemned the doctrine of Wycliff that every subject has the right to assassinate a tyrannical prince, a doctrine that would make the position of every ruler unsafe, since there are always persons who think they are victims of persecution. The nation, however, has the right to depose or even to execute a wicked ruler, for government is given to rulers for the benefit, not for the destruction, of the common good.
(b) If the ruler is a tyrant in title (that is, a usurper), it is not lawful to kill him, when he has already obtained peaceful possession; for here again it cannot be said that the killer would have the authorization of the nation. If, however, the tyrant has not obtained possession but is struggling for it, his status will not be that of ruler but of public enemy, and it will be lawful to kill him as an act of war, provided the conditions of a just war are present (see 1384).
1825. Judges and Executioners in Canon Law.--According to the law of the Church (Canon 984, nn. 6, 7), those who pass the death sentence as judges and the executioners and their immediate and voluntary helpers become irregular (i.e., incapable of lawfully receiving Orders or of exercising their powers). The reasons for this ancient discipline are chiefly two:
(a) clerics are the ministers of Christ, and therefore they should be like their High Priest, whose sacrifice they offer at the altar. Now Christ “when He was reviled, did not revile, when He suffered, He threatened not, but delivered Himself to him that judged Him unjustly” (I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn to death or kill their fellow-men, even criminals;
(b) clerics are the ministers of the New Testament, and therefore they should conform themselves to its spirit of mildness. The divine law itself declares that a bishop should not have private quarrels or inflict blows (I Tim., iii. 3), but the church law goes further and declares that a cleric should not even act as public judge or executioner in capital cases. The Old Testament inflicted corporal punishments and death, and hence we read that its priests and levites put sinners to death with their own hands (Exod., xxxii. 28; Num., xxv. 7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the law of Christ contains no sentences of death or of bodily chastisement.
1826. The Right of Self-Defense.--The second case of lawful homicide mentioned above (1819) is the killing of an unjust aggressor, not intended by the slayer, but consequent on his defense of his life against the aggressor. This right of self-defense is granted by natural law itself, and has been denied by but few moralists.
(a) Thus, nature inclines man to prefer his own life to that of another, other things being equal, and therefore it authorizes him to defend his life even at the cost of an aggressor’s life. Even the brute animals are armed by nature to defend themselves against attack.
(b) The natural law also permits one to perform an act from which two effects will follow, one good and the other bad, provided the good effect alone is intended and there is a sufficient reason for permitting the evil effect (see 104). In the present case the killing of the aggressor is an evil, while the protection of the innocent party is a good; but it is only the protection that is intended, and the killing is not an extreme measure in view of the greatness of the good that is at stake.
1827. The right of self-defense is also sanctioned by human laws. (a) Thus, church law recognizes this right in the words of Innocent III: “All laws permit one to repel force by force, but the defense must not be immoderate, nor exercised from desire of revenge.” According to the Code (Canon 985, n. 4) irregularity arises from voluntary homicide, but this does not include the case of lawful self-defense, although a provisional dispensation must be asked for. A cleric has the right of self-defense, as well as a layman. (b) Civil law also has always admitted the right of a person assailed by another to defend himself, even by killing the assailant, if there is no other alternative.
1828. Conditions for the Exercise of This Right.--(a) The assault must be a true aggression (i.e., an act of violence threatening the life of the person assaulted) and unjust (i.e., an attack made without public authority); (b) the resistance must be true self-defense (i.e., an act used to ward off attack or to make the assailant powerless) and moderate (i.e., the person attacked must not use more force than necessary and he must not intend to kill the assailant).
1829. The person who is killed must be a true aggressor, for otherwise the slayer is himself the aggressor and guilty of unjustifiable homicide. Killing is therefore unjust in the following cases:
(a) when the opponent is not using true violence, as when he merely prays and hopes that you may die or be killed;
(b) when he is not using actual violence, as when he is disarmed or helpless, or when he has only threatened to kill you in the future, or to bring you to the gallows by his testimony or vote.
1830. Must one wait, then, until the aggressor has actually attacked, before using self-defense? (a) One need not wait until physical aggression has started (e.g., until the adversary has fired a shot or struck a blow); otherwise self-defense would very often be futile. (b) One should wait until moral aggression has been shown before proceeding to defense; that is, the other party must perform some external act which according to the judgment of a prudent person at the time and place is one with the act of physical aggression, as when an angry man reaches for a gun or knife, or a desperado advances in a threatening manner.
1831. The aggression must also be unjust or contrary to the right of the person attacked. (a) Thus, if the aggression is just, it is not lawful to kill the aggressor. Hence, it is not lawful to kill an officer of the law who is making an arrest, or guarding a prisoner, or leading him to execution. (b) If the aggression is not just, self-defense is lawful. It makes no difference whether the aggression is formally unjust (e.g., when the aggressor attacks you because he wishes to wreak revenge, or because he fears you), or only materially unjust (e.g., when you are a stranger to the aggressor, but he is drunk, or a dope fiend, or a maniac). Similarly, a son may defend himself against his parent, a subject against his superior, a layman against a cleric, an adulterer against the injured husband, a calumniator against the person calumniated; for authority or personal injury suffered does not give these persons the right to inflict by private authority the punishment of death.
1832. Self-defense must be merely a protection of self against future evil and not a punishment of the aggressor for past attacks, for capital punishment belongs to society, not to private persons. Hence, if an aggressor has taken to flight, or has been disarmed, or knocked senseless, or has begged for mercy, it is not permissible to kill him.
1833. Self-defense must be moderate, for injury or the death of a human being is a thing that should be avoided when possible. (a) Thus, the person attacked must not reply with force at all, if this is possible. He should escape, or call a policeman, or throw the weapon out of the window, etc., if these means will suffice. Some authors excuse from flight those who would suffer disgrace if they ran away from danger, such as those who are pugilists or professional fighting men. (b) The person attacked should use only such force as is necessary, if force must be employed. Thus, if the aggressor can be made helpless by the use of gas, permanent bodily harm should not be done him; if he can be subdued with the fists, knife or pistol wounds should not be resorted to; if wounds will suffice to hold him at bay (e.g., by blackjacking), killing should not be resorted to. In the heat of a fight, however, the person assailed sometimes unintentionally goes beyond what moderation requires.
1834. The intention of the person who uses force to repel an unjust aggressor must be good. (a) Thus, as his end he must intend only the preservation of his own life and look upon the death of his neighbor as a misfortune. (b) As the means to this end he must intend only to stop the attack that is being made, not to bring on the death of the aggrcssor. Those who are commissioned by public authority to put a human being to death (e.g., the public executioner or soldiers in time of war) may intend these homicides, since they are means to the common good; but the death of one private person is not a means to the good of another private person, and hence it should not be directly aimed at.
1835. The mind of the person who defends himself against the unjust aggressor must also be free from sinful dispositions, such as hatred and revenge; otherwise he sins against charity. Our Lord reprobated the teaching of the Scribes that it is lawful to return injury for injury in a revengeful spirit, and declared that one should prefer to receive a second blow rather than return a blow for the sake of revenge (Matt., v. 38 sqq.; cfr. also Rom., xii. 19).
1836. When Self-Defense Is Obligatory.--Self-defense is sometimes an obligation. (a) Thus, it is an obligation, if the only factors considered are the life of the guilty aggressor and the life of the innocent person who is assailed; for the life of the innocent should not be sacrificed for the guilty, and charity indicates that the first duty of the person attacked is to himself. (b) It is an obligation, if, on account of circumstances, the person attacked owes it to others to preserve his life--for example, if he is the father of a dependent family, or a public official whose life is very necessary for the welfare of the community, or whose office it is to resist those who menace public security. This is true from the viewpoint of society also, for the world needs the good men it has, while there are too many wicked men already.
1837. Sometimes self-defense is not obligatory. (a) Thus, it is merely optional, when no duty to others commands self-defense and a divine counsel invites one to omit it (see 1169). Hence, if the assailant is certainly in mortal sin, while the person assailed is certainly in the state of grace, it would be very commendable to die rather than kill the assailant, in order to grant him time for repentance. But a case of this kind is rather theoretical than practical, for how could one be sure that the assailant would profit by the opportunity allowed him of doing penance? At any rate, the sacrifice is optional, for the aggressor is either formally unjust, and hence not in extreme spiritual need, or only materially unjust, and it will be uncertain whether he is in spiritual need or whether, if he is in such need, the respite will be used by him (see 1165 sqq.). (b) Self-defense is unlawful according to some, if the life of the assailant is necessary for the common good, and the life of the person assailed is not necessary. But this would be a very rare case.
1838. Defense of Neighbor’s Life.--The principles on defense of one’s own life against an unjust aggressor, even at cost of the latter’s life, may be applied to the life of an innocent third party.
(a) Thus, it is necessary to defend the innocent person, even if the aggressor has to be killed, when one is bound to give this protection by natural duty (e.g., because the innocent person is one’s child or father and the aggressor is not a relative), or by contract (e.g., because one is a hired bodyguard or policeman).
(b) It is lawful to defend the innocent person, even if the aggressor has to be killed, and even though there is no duty of nature or contract to give this protection (Exod., ii, 12). But it is disputed whether it is also necessary to do this. The affirmative opinion calls attention to the extreme bodily need of the innocent party, the negative to the extreme spiritual need of the aggressor. It is not necessary to risk one’s life in order to protect the life of the innocent party, unless the public safety is in peril, or one has undertaken this obligation (see 1169).
1839. A private individual may defend life at the cost of the life of an unjust aggressor, because he is obliged or permitted to protect the life that has more of a claim on him. He may also defend certain other most important goods that belong to him or to his neighbor, even if need be at the cost of the unjust aggressor’s life, because the common good is more valuable than the life of the aggressor, and the defense of those goods is bound up with the common good. Thus, if it were not permissible to defend valuable property even to the extent of killing a burglar, criminals would be encouraged, peaceful citizens would be at a disadvantage, and the public security would greatly suffer. Among the goods now spoken of are goods of fortune and goods of body. It is not always obligatory, however, to exercise the right of extreme self-defense (e.g., in case of violation, provided no consent is given the deed).
1840. Defense of Goods of Fortune Against an Unjust Aggressor.--(a) If the attack is equivalent to an attack on life (e.g., the aggressor wishes to take the last loaf from a starving man or the plank from a drowning man), or if it seems to be an attack on life (e.g., the burglar enters a room as if he meant to kill), the killing of the unjust aggressor is not unlawful, as is clear from the previous paragraphs.
(b) If the attack is made on goods of fortune only, but they are of great value and actually possessed, the question is disputed. According to some, killing in this case is unlawful, because life is more valuable than property; but the common opinion is that killing is lawful, both because Scripture excuses the person who kills the nocturnal robber (Exod., xxii. 2), and because the public safety is at stake and therefore justifies extreme measures.
(c) If the attack is made only on goods of fortune, and they are not yet possessed (e.g., a legacy one hopes to obtain) or have only a small value (e.g., one gold piece), killing is unlawful; for there is no proportion between external goods that are only hoped for or that are of minor importance and the life of a human being. Pope Innocent XI condemned the teaching that one may use homicidal defense to protect a coin or the prospect of receiving an office.
1841. Defense of Bodily Purity Against an Unjust Aggressor.--(a) If the attack is equivalent to an attack on life, or seems to be an attack on life, self-defense even by killing is lawful, and hence it may be permissible to kill one who is attempting rape.
(b) If the attack is on bodily purity only, but per actum consummatum luxuriae, the question is controverted. One opinion is that killing may not be resorted to, for the aggressor cannot take away purity of soul, and the purity of body that he violates is less good than life. The opposite opinion holds that killing may be employed in self-defense, since bodily purity has a higher value than even notable goods of fortune, especially as violation is usually accompanied by spiritual damage or disgrace of family, etc.; and the public interest demands that such outrages be sternly suppressed on account of the strong inclination of many persons to commit them.
(c) If the attack is on bodily purity only, and per actum non-consummatum luxuriae (e.g., per osculum vel amplexum), killing is not justified, but other means of defense, such as blows or wounds, may be used.
1842. Defense of Bodily Integrity Against an Unjust Aggressor.--(a) If the attack is equivalent to an attack on life (e.g., if the aggressor intends to mutilate or wound, but there is danger that he will kill), defense even with resultant killing is lawful.
(b) If the attack is not equivalent to an attack on life, but is very notable (as when a principal member will be lost or the person horribly disfigured), some authorities claim that defense which would cause the aggressor’s death is unlawful, because death is too heavy a price to pay for wounds. But against this it may be argued that the loss of limbs or organs is more serious than the loss of money, and, in some respects, is more damaging than violation. The civil law gives a person the right to protect himself in body and limbs, even by killing the assailant when absolutely necessary.
(c) If the attack menaces only a minor detriment (e.g., a black eye or bloody nose), certainly killing is unjustified. But the person attacked may hit harder and oftener than the assailant, if he is able, so that the latter may beware of him another time.
1843. Defense of Honor or Reputation.--When honor or reputation is unjustly attacked, the more perfect course is to bear the injury patiently and to pardon the offense, according to the teaching of Christ. But it is not sinful to defend honor and reputation, just as it is not sinful to defend life, limbs and property. How far may one go in defense of honor or reputation against an unjust aggressor?
(a) If the aggression is merely in words (as when the offender calls the other party a liar, or says that he is illegitimate), it is not lawful to use violence, at least such as would cause death; for there are other and less drastic means of defense that suffice (e.g., to answer the allegations, or even to retort the same epithets against the aggressor), and, unless the violence of even justifiable resentment were restrained, the world would be filled with disorder and homicidal violence. Innocent XI and Alexander VII condemned the doctrine that one may kill in order to prevent the spread of calumny.
(b) If the aggression is in deeds (as when the offender slaps the other person or throws mud or rotten eggs at him), it is not lawful to kill; for here also defense can be made in other ways (e.g., by bringing the aggressor before the court for punishment, or, if this cannot be done, by returning slap for slap, etc.). Innocent XI rejected the proposition that it is lawful to kill the aggressor who gave one a blow and then fled. It is only when the aggressor is continuing his attack, and imperilling the innocent party in life or limb, that the latter may repel the extreme force by extreme force.
1844. Killing of the Innocent.--So far we have spoken of the killing of malefactors and unjust aggressors, which under certain conditions is not sinful. The next subject is the killing of the innocent, that is, of those who are neither malefactors nor unjust aggressors worthy of death.
(a) The killing of the innocent by human authority, if it is done directly and intentionally, is always sinful, whether the cause be a private individual or society. But since God is the Master of life and death, He could command the death of an innocent person, as was done when he bade Abraham to sacrifice his son (Gen., xxii. 12).
(b) The killing of the innocent, if it is indirect and unintentional, is not sinful when there is a serious reason for performing an act from which the killing results; for it is lawful to perform an act from which two effects follow, if the good is intended but the evil only permitted, and there is a sufficient justifying reason (see 103 sqq.).
1845. Unlawful killing of the innocent is a most heinous crime.
(a) It is an injury to the rights of God over human life, and is forbidden in the Fifth Commandment of the Decalogue: “Thou shalt not kill” (Exod., xx. 13). To judges the special command was given: “The innocent and just person thou shalt not put to death” (Exod., xxiii. 7). The man-slayer destroys the image of God, a crime so detestable that in Scripture God declares that He will revenge the blood of man, even though shed by a beast (Gen., ix. 5; Exod., xxi. 28).
(b) It is a most grave sin against the individual, for it deprives him of his chief natural good and the means of securing and enjoying many great spiritual goods. If the person killed desired or asked for death, no injustice is done to him, since he waived his right, but uncharitableness is committed, since the neighbor’s life should be loved, and the uncharitableness is greater according as the person is more worthy of love. Scripture numbers murder among the sins that cry to heaven for vengeance (Gen., iv. 10, ix. 5).
(c) It is an outrage against society, for such killing unduly deprives the community of one of its members, causes scandal and disturbs the peace. Hence, the law has always inflicted the severest punishment on slayers of the innocent.
1846. Since the end does not justify the means, the following ends do not justify the direct and intentional killing of innocent persons:
(a) the public good does not excuse, for example, if an enemy were to threaten destruction against a city unless it put to death an innocent person who dwelt in its borders. The criminal on account of his lawlessness is an obstacle to the common good, but the law-abiding citizen promotes the common good and it would be harmful to the public peace if he could be put to death without any fault of his own. The State is for the citizen, not the citizen for the State. But if the common safety depended on the sacrifice of one man’s life, charity and patriotism would require this man to make the sacrifice spontaneously (see 1169); that is, he should deliver himself to the enemy, and were he to refuse, it seems the community would have the right to deliver him. Similarly, it is not lawful to kill hostages, even though the enemy has broken faith, or killed one’s subjects;
(b) the private good of other individuals does not excuse; for example, it is not lawful to kill a maniac lest he do harm to those around him, at least unless the conditions of unjust aggression are fulfilled. Similarly, it is not lawful to kill a woman with child, in order to baptize the child;
(c) the private good of the individual himself does not excuse; for example, it is not lawful to shoot or poison those who are mortally wounded or suffering from an incurable disease, or who are old and helpless, in order to spare them suffering. But one may give a person at the point of death a medicine that may hasten the end, if there is good hope that it will cure him and other remedies are futile, for the purpose is not to kill but to cure (see 2485). It is lawful also for embalmers to puncture the heart or sever an artery of a person who seems to be dead, if there are certain signs of his death, for the purpose is not to kill this person, but to free his friends from fear that he is buried alive.
1847. Indirect or Unintentional Killing of the Innocent.--Indirect and unintentional killing of the innocent is lawful (1872) only when there is a reason of sufficient gravity (i.e., one of a value proportionate to the life of the innocent person).
(a) The public safety is such a sufficient reason. Thus, in time of war it is lawful to attack a city, even though the death of many non-combatants will result, or to charge the enemy, even though innocent persons have been placed by the latter as a shield to his front ranks.
(b) Private safety from death is not a sufficient reason, if it does not compensate for the loss, or if it is secured unlawfully (see 104). Thus, if Balbus cannot escape from an unjust aggressor without running down and killing an unbaptized infant or a man whose life is very necessary for the community, the temporal life of Balbus does not compensate for eternal life lost by the infant in the first instance, and the mere private good of Balbus does not compensate for the public good sacrificed in the second instance. Again, if Caius cannot escape from drowning without pushing a shipwrecked companion from the only plank which is insufficient for both, or if Sempronius who has been sentenced to death for crime cannot escape execution unless he kills his guard, the means of securing safety are unlawful.
(c) Private safety from death is a sufficient reason, if it compensates for the loss and is secured lawfully. Hence, if the life of the innocent person is only of equal importance, self-defense against an unjust aggressor by means of flight that will involve the innocent person’s death does not make one guilty of homicide (e.g., Titus is speeding in his car in order to escape a pursuer bent on murder and he cannot avoid hitting and killing a cripple who crosses the road). If self-defense is conducted by means of attack, one may use violence against the aggressor (e.g., one may shoot at him, although an innocent person whom he is using as a shield will be killed), but not against the innocent person (e.g., one may not shoot at the innocent person in order to deprive the aggressor of his shield, nor may one hold the innocent person before one in order that he receive the assailant’s bullet).
1848. Destruction of the Unborn.--(a) Direct and intentional destruction of this kind is unlawful and is known as feticide, when the fetus is killed within the womb, or abortion, when a non-viable fetus is expelled from the womb. It is not abortion to hasten the birth of a viable fetus (i.e., one which is about six or seven months old and can live outside the womb), since the child can be kept alive, but grave reasons are required to make it licit, since it presents a risk to the child’s life. But to deliver or expel a non-viable fetus is abortion. Every direct abortion is regarded by the Catholic Church as murder and is penalized with the censure of excommuuication (Canon 2550, Sec. 1). It might be argued that the direct killing of what is surely a human being is murder, but when does the fetus become a human being? The ancient theory of Aristotle, followed by St. Thomas and most medieval authors, maintains that the embryo did not become human until some time after conception, an opinion that still has great probability physically. Others maintain that animation is simultaneous with conception. Since we do not know the exact moment of animation, the moment of conception must be accepted in practice as the beginning of human life. Probabilism is ruled out in this instance, for there is no doubt about the law and its application: we must not directly kill what is probably a human being. Accordingly, abortion is considered to be murder. Hence, even in the case of a girl who has been raped--although it is a probable opinion that measures may be taken to remove the semen from-her body--it would be gravely sinful to give any treatment which would abort an impregnated ovum.
(b) Indirect and unintentional killing, or rather permission of death, is not unlawful in such a case, when there is a proportionately grave reason, such as the life of the mother. Thus, it is permissible to give the mother a remedy necessary to cure a mortal disease (e.g., medicinal drugs, baths, injections, or operations on the uterus), even though this will bring on abortion or the death of the fetus; for the mother is not obliged to prefer the temporal life of the child to her own life. But the baptism of the child must be attended to, for its salvation depends on the Sacrament, and the eternal life of the child is to be preferred to the temporal life of the mother, if the conditions of 1166 are verified.
(c) Contemporary moral opinion considers that in tubal pregnancies (ectopic gestation) the tube itself is in a pathological condition long before rupture of the tube, as experts in obstetrics teach, and hence can be excised as a diseased organ of the human body. As such, the excision of such a tube would be in itself a morally indifferent act and, granting verification of the other conditions for the principle of double effect, could be licitly performed. (For a history of the moral question, medical testimony and full argumentation see Chapter X of Medical Ethics by Charles J. McFadden, O.S.A.) Some theologians, however, believe that the tube cannot be removed unless it can be proved in each case that a pathological condition, placing the woman in danger of death, exists. The first view is accepted as sufficiently safe to be followed in practice. (See Francis J. Connell, C.SS.R., Morals in Politics and Professions, p. 118.)
1849. It is unlawful positively to kill the mother in order that the unborn child may be saved or baptized. When a caesarean section offers the sole chance of saving the mother’s life, it is permitted. It is seriously doubtful whether a mother is morally obliged to undergo the operation in situations where a threat to her life exists. In this case, if baptism in the uterus is possible without increasing the danger to the mother’s life, it should be attempted. When a caesarean section does not offer any chance of saving the mother’s life, but will directly contribute to her death, the operation should not be performed. One must await the death of the mother and then observe the norm of Canon 746; “Immediately after the death of a pregnant woman, a caesarean section should be done in order that the fetus may be baptized.” The procedure to be followed is outlined in medical-ethics books. (See McFadden op. cit., pp. 244 ff.)
1850. Direction in Cases of Doubt, Ignorance, or Error.--(a) In case of doubt, if there are positive and solid reasons for believing that an operation performed to save a woman’s life will not be destructive of the life of a fetus, the operation seems lawful; for in doubt, the woman, as the certain possessor of life, has the presumption.
(b) In case of ignorance or error (e.g., when a penitent asks whether a certain operation is permissible, or a surgeon in good faith performs an operation that is not lawful), either a truthful answer should be given to questions, or silence should be observed when an admonition would only be harmful (e.g., if to require the Caesarean operation from a dying mother would have no other result than to make her die in bad faith instead of good faith).
1851. Canonical Penalties for Homicide and Abortion.--(a) Homicide, if voluntary, produces irregularity (Canon 985, n. 4) and subjects the guilty party to exclusion from legitimate ecclesiastical acts or to degradation from the ecclesiastical state (Canon 2354). Moreover, a church is violated by the crime of homicide (Canon 1172). (b) Abortion of a human fetus, when the effect is produced, brings irregularity on those who procure it and also on the cooperators (Canon 985, n. 4). Moreover, those who procure abortion effectively, the mother not excepted, incur excommunication latae sententiae reserved to the Ordinary, and, if clerics, they are to be deposed (Canon 2350).
1852. Suicide.--Suicide, or the killing of oneself, is, like homicide in general, of various kinds.
(a) Thus, in reference to the intention, it is voluntary or involuntary, according as it proceeds from knowledge and choice, or as it is committed without realization of what is done or without the intention to produce death. Examples of involuntary suicide are a person who is temporarily insane on account of impending calamity and drowns himself, and a person who, attempting to frighten another by pretending to hang himself, actually strangles to death. It would be a mistake to say that no person who commits suicide is free, but no doubt a large percentage of those who kill themselves are not responsible for their act.
(b) In reference to the mode, suicide is direct, if that which is done tends from its nature to the death of the person who does it (e.g., firing a pistol into one’s brain); it is indirect, if that which is done tends from its nature to another end (e.g., to struggle with a criminal who is firing a revolver). Direct suicide is committed in many ways, all of which can be reduced to positive (e.g., the eating or drinking of deadly poison) and negative (e.g., the refusal to eat or drink anything).
1853. The difference between direct and indirect suicide is also explained as follows: (a) direct suicide is an act or omission that has but one effect, namely, death (e.g., taking deadly poison); (b) indirect suicide is an act or omission that has two effects, one of which is the peril of death. This peril of death is certain, if death always follows (e.g., jumping from the roof of a skyscraper); proximate, if death usually follows (e.g., jumping from a third- or fourth-story window); remote, if death now and then follows (e.g., jumping from a second-story window).
1854. Sinfulness of Suicide.--Voluntary and direct suicide is always a most grave sin, if committed without due authority (i.e., the command of God).
(a) It is a grave injury against the rights of God, for it usurps His authority, refuses Him the service He desires, spurns the gift He has bestowed, dishonors the image of God (Gen., ix. 6), and destroys the property of God: “Thou, O Lord, hast the power of life and death” (Wis., xvi. 13).
(b) It is an offense against society, for the community has a right to be benefited by the lives of its members, and to receive a return for the protection and assistance it affords them. Moreover, death by suicide is usually felt as a great sorrow and disgrace by the relatives of the departed, and it has a demoralizing effect on many persons of suggestible minds. The fact that the death of this or that man is not felt as a loss by a family or the State, but rather as a relief, is no argument; for if suicide were left to human decision, how many fatal mistakes would be made (see 460)! Persons valuable to society would rashly kill themselves, fearing in a mood of depression that they were worthless; others who could contribute nothing in material ways would destroy themselves and deprive their fellow-men of an example of fortitude, or at least of the opportunity of showing charity and mercy to the needy.
(c) Direct and voluntary suicide is a sin against the deepest natural inclination, for self-preservation is called the first law of nature (see 298), and also against that love of self which charity requires (see 1136 sqq.). Since charity to self is more obligatory than charity to the neighbor, suicide is a more serious sin than other forms of homicide. Nor is it excused by the desire of some good for self. The suicide does not better himself by his act, for, since he has not fulfilled his trust in this life, what can he expect in the next life? He escapes the lesser evils of physical miseries or moral temptations, but he incurs the greater evils of physical death and of moral cowardice and defeat, to say nothing of his punishment in the hereafter.
1855. Cooperation in Suicide.--Cooperation in suicide has the guilt of unlawful homicide. (a) Thus, those who incite, advise, command, or assist another to commit suicide are guilty of moral murder. (b) Those who carry out together a suicide pact are guilty both of suicide and of moral murder.
1856. Permission or Authorization to Commit Suicide.--(a) Divine authority could command or permit suicide, since God has the power over life and death. But whether God has ever done this is uncertain. Some argue for the affirmative from the death of Sampson, who pulled down the house upon himself saying: “Let me die with the Philistines” (Judges, xvi. 30), and of Razias who killed himself to escape ill-usage (II Mach., xiv. 37 sqq.), and from the acts of certain female martyrs who from love of God or from the desire to preserve chastity rushed to their deaths. But others think that invincible ignorance may explain these cases. The act of Sampson may also be understood as indirect suicide lawfully committed for the public good of his country.
(b) Human authority, according to some authors, could authorize a condemned malefactor really guilty of a capital crime to execute himself; for, they argue, there is little difference between opening one’s mouth to swallow poison administered by an executioner and taking it with one’s own hands, as was done by Socrates. Others deny that God has given the State the authority to order suicide, and they declare that it is both unnecessary and inhuman to force a condemned man to be his own executioner. Still others believe that the State could command self-execution, at least in necessity, but that such a punishment is so strange, cruel and unnatural that it should be avoided; for, if it is shocking to ask a father to execute his child, much more shocking would it be to ask a man to kill himself. The argument is inconclusive which says that because it is lawful to perform an act preparatory for death, but which is indifferent and would never cause death (such as opening the mouth for poison), it is also lawful to perform the act which inflicts death (such as taking the poison).
1857. Indirect Suicide.--Indirect suicide is committed when one is the cause of an act or omission, indifferent in itself, but from which one foresees as a result that one’s life will be lost or notably shortened, This kind of “suicide” is lawful when and if the conditions for a case of double effect are present--in other words, if there is a proportionately grave reason for permitting the evil effect (see 103 sqq.). The following reasons are considered sufficient:
(a) the public good, for the welfare of society is a greater good than the life of an individual. Eleazar is praised because he exposed himself to death in order to deliver his people (I Mach., vi. 43 sqq.). It is not sinful, then, but rather obligatory for a soldier to advance against the enemy or to blow up an enemy fortification, though it be certain that his own death will result; nor is it wrong for a pastor to go about ministering to his flock during a pestilence, though it be certain that he will fall a victim to the plague. Explorers and experimenters may also risk their lives for the advancement of science;
(b) the good of another suffices for indirect suicide, when he is in extreme spiritual need. Indeed, there may be an obligation of charity to risk one’s life for the salvation of a soul (see 1166). Hence, it is lawful to go as a missionary to a country whose climate is so trying that strangers die there after a few years;
(c) the higher good of self (i.e., the good of virtue) justifies indirect suicide, when there is an urgent reason for exercising a virtue in spite of the peril of death. Thus, for the sake of charity a shipwrecked passenger may yield his place in the life-boat to his parent, wife, friend, or neighbor; for the sake of faith, one may refuse to flee in time of persecution (see 1006), or may refuse and should refuse to take food or drink offered as a mark of idolatry; for the sake of chastity a virgin, at the peril of her life, may jump from a high window or resist the assailant, although it does not seem that this is obligatory if no internal consent will be given to the rape; for the sake of justice, a criminal in the death house who has an opportunity to escape from prison, may decide to remain and be executed, or a malefactor condemned to die by starvation may refuse to take food secretly brought him; for the sake of mortification, one may practise moderate austerities, as by fastings, watchings, scourgings, hair-shirts, etc., which sometimes shorten life, though generally they lengthen it;
(d) the preferable temporal good of self suffices, that is, one may risk the danger of death to escape another danger that is more likely to happen or more terrible. Thus, a man in a burning building may leap from a high window, even though death from the fall is almost certain, for death by burning is more terrible; a prisoner who is about to be tortured to death may make a break for liberty if he sees a chance of escape, for death is more certain if he remains. On the same principle, one may engage in hazardous but useful occupations, such as working on high buildings, or as a diver or miner, for it is better to live a shorter time with employment and the necessities of life, and to be of service to the public, than to live a longer time without these advantages. But a worker should not undertake dangerous tasks for which he is unfitted or unprepared, and the employer is bound to safeguard the lives of the workers.
1858. The same reasons are not sufficient in all cases. (a) Thus, the greater the risk of death, the more serious the reason required. Hence, to save the money one has it might be lawful to jump from a second-story window, but not from a higher window when the fall would most likely kill one. (b) The more immediate the danger of death, the more serious the reason required. Thus, to save money one might lawfully enter a quarantined house, but the risk would not be permitted if the house were tottering in an earthquake. (c) The more notable the shortening of life, the greater the reason needed to permit it. Thus, if the practice of a certain mortification or labor reduces the expectancy of life for a few years, a lesser reason suffices than if it reduces the expectancy for ten or more years.
1859. Indirect suicide is unlawful and has the guilt of self-murder when the reason for risking death is frivolous or insufficient or sinful.
(a) Examples of insufficient reasons are found in the cases of persons who engage in occupations or actions that are very dangerous to life or limb but of little public or private value, as when for the sake of performing a feat a man walks a tight-rope, pricks himself with pins and needles, or puts his head into a lion’s mouth. But if the performer is very skillful and has no other means of livelihood, it seems that he may exercise his art for the sake of entertainment.
(b) Examples of sinful reasons for risking death are found in persons who abbreviate their lives by over-eating, drunkenness, habitual indulgence in strong spirits, or immoderate passion of any kind; and also in those who refuse to make use of the ordinary means for the preservation of health (see 1566 sqq.) or of the ordinary remedies against disease (see 1571). It is not necessary that one be anxious to live long (see 1063), but it is obligatory to use the normal means for the preservation of life, and those who notably neglect these means are guilty of indirect suicide.
1860. Is it suicidal to refuse a surgical operation pronounced necessary for life?
(a) If the operation is likely to be successful and there is no good reason for refusing it, it seems that one may not refuse it without the guilt of indirect suicide, although one might be excused on account of good faith.
(b) If the success of the operation is doubtful, or if there is a good reason for refusing, one who refuses is not guilty of suicide. Among the good reasons are spiritual ones (e.g., modesty, the fear of falling into blasphemy or despair under the pain are given by some writers) and temporal ones (e.g., the poverty that would be brought upon the patient’s family or the hardship that would result for the patient himself).
1861. Canonical Penalties for Suicide.--(a) Those who attempt suicide are irregular ex delicto (Canon 985, n. 5). (b) If they die, they are not given ecclesiastical burial unless they gave signs of repentance before death (Canon 1240, n, 3), and, if they recover, they are subject to various penalties (Canon 2350, Sec. 2). (c) If it is doubtful whether a person committed suicide, or was responsible, the doubt is decided in his favor, provided no scandal is likely.
1862. Accidental Homicide.--Accidental homicide is that which happens without any direct purpose to kill. But the following cases should be distinguished:
(a) when the homicide is not voluntary, either in itself or in its cause (see 35, 94), that is, when the slayer had no intention to kill and could not foresee that death would result from his act or omission;
(b) when the homicide is voluntary only in its cause, inasmuch as the person who kills is guilty of negligence in a lawful thing, or of something unlawful, and death results from the negligence or from that which is unlawful, although there was no direct wish to kill.
1863. The Case of One From Whose Lawful Act or Omission Homicide Accidentally Results.--(a) If this person was not guilty of negligence, he is not responsible for the resultant homicide, since it was not voluntary, either directly or indirectly. Thus, if a man who was said to be dead, but who knows nothing about the report, calls at his home and his wife drops dead on seeing him, he is not responsible for her death.
(b) If the person in question was negligent, he is guilty of homicide in a greater or less degree according to the seriousness of his neglect. Thus, a sane man who flourishes a loaded revolver in a crowded room is responsible if the revolver goes off and kills someone present; but a nurse who leaves a sick room for just a moment with the result that her patient falls out of bed and is killed, is only slightly responsible at the most, if there was little reason to expect what happened.
1864. The Case of One From Whose Unlawful Act or Omission Homicide Accidentally Results.--(a) If this person was not negligent and his conduct was not dangerous to the lives of others, he is not guilty of homicide; for the death that ensued was not voluntary, either directly or indirectly. Thus, if a thief is driving away carefully with a stolen automobile and a reckless pedestrian gets in front of the car and is killed, the driver is guilty of theft, but not of homicide.
(b) If the person in question was not negligent but his conduct was nevertheless dangerous to the lives of others, he is guilty of homicide; for the death that followed was voluntary indirectly, since he could have foreseen the homicide and should have avoided the conduct. Thus, if a person strikes lightly a pregnant woman and she suffers an abortion, or if one who is not a surgeon tries to mutilate an innocent person and kills him, he is responsible for the death, since the acts committed remained dangerous to life, no matter how careful the offender may have been to avoid killing.
1865. Moral and Legal Guilt.--The law may hold one responsible for homicide, even though there is no theological guilt (see 1766 sqq.). (a) Thus, one may be held responsible for the consequence of acts only juridically negligent, as when an automobilist while driving at a speed unreasonable in law, but not in fact, kills a pedestrian. (b) One may be held responsible for acts committed by those subject to one’s care or control, as when a man keeps a dog loose not knowing that it is vicious and it kills a neighbor’s child, or when he illegally lends his car to a minor, thinking the latter is a good driver, and the minor carelessly runs down a person in the road.
1866. Bodily Injuries.-Injustice is done not only by destroying the life of a human being, but also by harming him in his rights to bodily integrity or well-being. The chief bodily injuries are the following:
(a) mutilation, which deprives a person of limbs or members, without inflicting death;
(b) wounding, which by an act of violence (such as a stab or blow) breaks the continuity of the body, or impairs its strength or beauty;
(c) enfeeblement, which impairs or destroys the health, strength, or comfort of the body in unlawful ways (e.g., by deprivation of necessary food, sleep, fresh air, by communication of infection, by beating, hazing, etc.);
(d) restraint, which hinders the lawful exercise of the bodily powers (e.g., by holding a person against his will, by chaining him to a post, by locking him in a room).
1867. Mutilation. In general, any kind of act which injures or impairs bodily integrity is called mutilation. In the strict sense, mutilation is any cutting off, or some equivalent action, through which an organic function or a distinct use of a member is suppressed or directly diminished. Accordingly, three distinct types of mutilation are possible: (a) when a part of the body with a distinct function is excised; (b) when a distinct organic function is totally suppressed, without excision of the organ; (c) when the function is directly lessened or partially suppressed.
1868. Morality. (a) Liceity. The basic principle governing the morality of mutilation is: Man is not the master of his own life, but only the custodian. Accordingly, neither is he master of his own body. Thus, Pope Pius XII, speaking of the “Surgeon’s Noble Vocation” (The Catholic Mind, Aug. 1948, pp. 490 ff.), declared: “God alone is Lord of the life and integrity of man, Lord of his members, his organs, his potencies, particularly of those which make him an associate in the work of creation. Neither parents, nor spouse, nor the individual in question may dispose of them at will.”
As steward, man has duties toward his body, its health and welfare, according to the norms of reason and the divine law, so that it may be a means of his attaining life with God. Acting in accord with these norms and the end of life, it may become necessary and licit for man to mutilate his body in order to safeguard health or to save his life. The principle expressing the morality of mutilation, known as the principle of totality (Pius XII, Nous vous saluons, AAS 45-674), may be formulated: Man may licitly mutilate his body only insofar as this is expedient for the good of the whole. In fact, such mutilation is often obligatory, since one must use ordinary means to protect his life and health, and since the part is for the whole. Thus, one would be bound to undergo an operation for appendicitis in order to save one’s life.
Although an organ be not diseased, it may under certain circumstances be removed. Thus, a surgeon operating for hernia may remove a healthy appendix, should the danger of adhesions be foreseen that would require a later operation. Nor is it necessary that there be a “present” danger. The words of Pope Pius XII, that mutilations are permissible when required “to avoid ... serious and lasting damage” (AAS 44-782), are suggestive of the liceity of prophylactic operations. (See medical-ethics texts for special cases, such as lobotomy, thalamotomy, experimentation, etc.)
The problem of mutilation involved in organic transplantation for the benefit of a neighbor is highly controverted at the present time, Pope Pius XII discussed the legality of corneal transplants from the dead to the living (The Pope Speaks, Autumn, 1956, pp. 198 ff.), but he did not touch the matter of transplants from living bodies. In this controversial matter, the following principles seem to be clear:
1) Mutilation for the good of the neighbor cannot be justified by the principle of totality, for the subordination implied in the principle is characteristic of a physical, not a moral, not even the Mystical, body.
2) Minor mutilations, such as skin grafts or blood transfusions, are certainly permissible. The speculative basis is still a matter of dispute.
3) It is solidly probable extrinsically that organic transplantations may be permitted, possibly out of charity and for a proportionate reason. Some contend, however, that the act of mutilation involved is intrinsically evil and can not be justified by the extrinsic motive of charity.
Mutilation is lawful by public authority in punishment of a criminal; for if the state has the right to inflict death for serious crime, much more has it the right to indict the lesser punishment of mutilation. The expediency, however, of exercising the right must be judged in terms not only of punishment, but also of prevention of crime. Mutilation has no necessary connection (apart from special circumstances) with deterring criminals from further crime.
(b) In other cases mutilation is unlawful; for just as man is not the master of his life, neither is he the master of his limbs, and he commits a wrong against God, society, and the individual if he destroys parts of his body when neither public good nor private safety demands that this can be done. Thus, mutilation of a criminal performed by private authority is unlawful. Hence, a husband may not mutilate a man who has broken up his home.
Mutilation of an innocent person that it not necessary for his bodily safety is unlawful. Even spiritual good is not a sufficient reason; for example, one may not castrate oneself in order to escape temptation, for this operation does not take away passion, and, moreover, there are spiritual means which suffice against temptation. When Our Lord says that one should cut off a hand or foot that causes scandal (Matt., xviii. 8), He is speaking metaphorically of the avoidance of the occasions of sin. Much less is temporal good a sufficient reason for mutilation. Hence, a youth may not have his teeth pulled in order to escape military service; a pauper may not have his arm amputated in order to get larger alms; a boy may not be castrated in order to give him a better singing voice; a woman may not have the hysterectomy or other similar operations performed merely to prevent conception; a man may not have the operation of vasectomy performed on him in order to prevent generation.
1869. Morality of Sterilization. Mutilations which frustrate the power of procreation in men and women are called sterilization. Two kinds are distinguished; indirect, to remove diseased organs; direct, to prevent conception.
(a) Indirect sterilization (also called by many therapeutic) is lawful when it is necessary to save life or health. The ethical principle involved is the indirect voluntary or the principle of double effect. Hence, vasectomy may be used to prevent idiocy or death, or to remove or allay physiological abnormalities that bring on certain sexual perversities or disturbances, if it is likely that these evils are imminent or present and that the operation will be beneficial.
(b) Direct sterilization by public authority includes both punitive and eugenical sterilization. The latter was condemned by Pope Pius XI in Casti Connubii. In context the Holy Father was dealing with the false claims made in the name of eugenics that the State might legitimately sterilize those who by reason of hereditary defect might be considered likely to generate defective offspring. This position is vehemently rejected: “Public magistrates have no direct power over the bodies of their subjects. Therefore where no crime has taken place and there is no cause present for grave punishment, they can never directly harm or tamper with the integrity of the body, either for the reasons of eugenics or for any other reason. St. Thomas teaches this when, inquiring whether human judges for the sake of preventing future evils can inflict punishment, he admits that the power indeed exists as regards certain other forms of punishment, but justly and properly denies it as regards the maiming of the body.”
In the same context, punitive sterilization, whether as punishment for crime or as deterrent, was also declared to be unlawful. However, fasciole 14 of the AAS for 1930 emended the text and seems to have withdrawn the formal condemnation of punitive sterilization. a subject of theological discussion at the time. The matter had not been closed and the emendation had the force of reopening the question.
Theological opinion is still divided as to the liceity of punitive sterilization. Some still maintain that since the state can inflict the superior penalty of death for serious crime, a fortiori also the lesser punishment of sterilization. Others deny the liceity, for sterilization does not achieve the essential purposes of punishment; it is not corrective, preventive, retributive, or emendatory. Accordingly punitive sterilization is unreasonable and inconvenient. This latter view prevails among most modern moral theologians. Confirmation for the view is sought in the response of the Holy Office (AAS 32-73) that direct sterilization is prohibited by the law of nature. Since punitive sterilization has as its immediate effect, whether as an end or as a means, sterility of the generative potency, it may well fall under the category of direct and hence also under condemnation of the Holy Office.
1870. Other Bodily Punishments.--Other bodily harms (wounds, blows, restraint) may not be inflicted except under the following conditions:
(a) there must be sufficient authority. The State, being a perfect society, has greater coercive power, and may inflict penalties that are of a permanent character, such as death or mutilation or wounds (e.g., by branding); and it may impose restraint, not only from unlawful, but also from lawful acts. The family, being an imperfect society, has a limited coercive power, and hence the father, or those who hold his place (e.g., teachers), may administer corporal chastisements that are not of an irreparable kind to his children (such as beatings, whippings). Other persons may punish or restrain only in case of urgent necessity (e.g., one may hold a stranger who is about to commit murder; one may chastize a neighboring boy who cannot be kept from depredations on one’s property in any other way). It is not wrong, however, to inflict moderate bodily hurts, if the other person is not unwilling and there is a reasonable purpose, such as exercise, training in the art of boxing or wrestling, recreation, or mortification;
(b) there must be a sufficient reason for the harm done. The good of the public is a sufficient reason; for example, when a criminal is incorrigible and it is dangerous for him to be at large, it is not unreasonable to give him a life sentence. The good of the individual is also sufficient; for example, when a surgeon has to wound in order to cure, when a father has to use the rod in order to improve the child or to uphold discipline (Prov., xiii. 24, xxiii. 13);
(c) there must be moderation in the harm or pain inflicted. Thus, while children should not be spoiled, nor prisoners pampered, the other extreme of maltreatment or torture must be avoided. It is cruel to box children soundly on the ears, or to push them roughly about, or to tie them up in the dark, as they may suffer permanent injury from such methods. Likewise, it is barbarous to send convicts to a place or prison so horrible that they lose their minds or fall victims to lingering disease, or to inflict excruciating punishments by rack, thumb-screw, prolonged scourgings, etc.
1871. Injury to Health.--Harm unjustly done to the health of others is sinful, and, if the harm is great, the sin is mortal. Examples: (a) Harm to health is done negatively by omission of duty, as when a medical man or physical director does not use sufficient care and a patient thereby suffers detriment to health, or an employer does not see that his factory or place of business is sanitary, or that the work is not too exhausting with the result that employees lose their vigor. (b) Harm to health is done positively by acts or objects that tend to deprive another of the means to physical well-being (e.g., annoyances, noises that prevent sleep, adulterated food, maintenance of a nuisance which creates suffocating smells or harmful vapors, etc.), or that bring to another the infection of disease (e.g., when a well person is made to live or room with one who has tuberculosis).
1872. Theft and Robbery.--Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:
(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);
(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).
1873. The Chief Kinds or Ways of Occupation.--(a) Animals.--Domestic animals (e.g., dogs, cats) may not be occupied, even though they have strayed from their owner; tamed animals (e.g., bees, pigeons, songbirds) may be occupied only when they have recovered their liberty; wild animals (e.g., birds, foxes, fishes, hares, etc., at large) may not be occupied, unless they are kept in a small enclosure from which they cannot escape.
(b) Land and Plants. These may be occupied only when they have no present owner.
(c) Treasure-trove.--This is a deposit of precious movables hidden away so long ago that it is impossible to discover the owner. According to natural law it may be occupied by the finder, but the civil law sometimes decides that the find must be divided with the owner of the place or with the government.
(d) Lost Property.--This embraces those movables which an owner has recently parted with, through accident or forgetfulness, without any intention of giving up his ownership of them, and which are now easily findable, although their owner is not known. The finder is obliged to make reasonable efforts to find the owner. If he neglects to make these efforts, proportionate to the worth of the found article, and is convinced that he might have found the owner, he is considered by some theologians to be a possessor in bad faith and bound to reserve the article for the owner or turn it over to the poor or to pious causes. Having made the effort unsuccessfully, according to natural law, he may use the article as his own. The prescriptions of civil law as to the time interval before he may begin to use the article must be observed.
(e) Abandoned Goods.--According to natural law one may occupy goods voluntarily relinquished by the owner (e.g., an old automobile left by the roadside), but the civil law sometimes awards certain classes of goods (e.g., immovables) to the State.
(f) Vacant Goods.--According to natural law the goods of one who died without heirs may be occupied; but under the civil law they usually devolve to the State, whether they be movables or immovables.
1874. Principles on Accession.--(a) According to natural law, if the two things united are separable, then each owner should be given his own property; but if the things are inseparable and one is more valuable, the owner of the more valuable part keeps all, but compensates the owner of the less valuable part; if the things are inseparable and of equal value, there is joint ownership.
(b) According to positive law, these natural principles are applied to various cases of accession, whether it be natural (as through growth of plants or deposit of land by rivers) or artificial (as through change made in a material by labor, or addition of one substance to another). These details are treated in books on law.
1875. Prescription.--Prescription laws (see 1798) are valid in conscience, since they are determinations about property rights made in the interest of the common welfare. But the following conditions are required for acquisition of property through prescription:
(a) the object of prescription must be a thing prescriptible according to natural and positive law. Thus, natural rights and public property may not be prescribed against;
(b) the subject of prescription must be a person capable of possessing, and he must be honestly convinced that he has a right to what he possesses;
(c) the claim of the subject to the object must rest on possession, on apparent title to the property, and on the lapse of the legal time during which possession has been held or ownership has remained undisputed.
1876. Wills.--A will is a declaration made in legal form (i.e., with the solemnities required by law) of the disposal to be made of one’s property after one’s death. Defects in a will or legacy sometimes operate to take away the moral obligations of observing it.
(a) Thus, if the defect is one of natural law (e.g., a will made under duress), there is no moral right or obligation produced by reason of the gift.
(b) If the defect is of positive law only and makes the will rescindable (e.g., a will not subscribed, as by law required, in presence of the testator), the gift is good in conscience until adverse decision of court.
(c) If the defect is of positive law only and makes the will ipso facto invalid (e.g., a legatee acts as witness to a will), the gift is good in conscience, if there is question of pious causes, since property donated to God may not be alienated by human laws. But the Church desires civil formalities to be observed in the making of wills (Canon 1513).
(d) If the defect is positive and ipso facto invalidating, and there is question of profane causes, the will is not good in conscience, even before declaration of court.
1877. Contracts.--A contract may be deined as a mutual agreement concerning the transfer of a right.
1. A contract is a mutual agreement, i.e., there must be consent of at least two parties to the same object. An offer made but not accepted is not a contract, for only one party consents.
2. The contractants transfer a right which produces in most instances under justice a corresponding obligation of doing or omitting something. Promises, pledges, pacts, etc., while they impose obligations based on truthfulness, loyalty, etc., are not contracts. See 1888 (a).
3. The obligation in justice may be on both sides (bilateral) or only on one side (unilateral), but consent must be on both sides.
The elements of a contract are made up of essentials and accidentals. (a) The essentials include the subject-matter, the parties contractant, their agreement, and the external form that manifests the agreement. (b) The accidentals include bonds, oaths, conditions and modes.
1878. The subject-matter of a contract--that is, the thing or action or forbearance with which the agreement is concerned--must have the following qualities:
(a) it must be something possible, for one may not undertake what one cannot perform. Thus, one cannot bind oneself by an accessory contract (such as suretyship), if the principal contract itself is ipso facto invalid. But if the impossibility is only moral (i.e., great difficulty), one who knowingly undertakes the arduous is bound to fulfill his promise; if it is only partial, one is held to the part that is possible; if it is culpable, one is bound to repair damage caused the other party through non-fulfillment;
(b) it must be something disposable, for one may not transfer that over which one has no right of control or transfer. Thus, one may not contract to sell public property that is extra commercium, or property of which one has only the possession, or goods over which others have a claim (e.g., a debtor may not bestow gifts to the detriment of creditors’ rights), or goods not transferable for pay (e.g., payment for a favorable decision by a judge, or property owed to a third party) or for money (e.g., academic degrees, public offices, Sacraments, indulgences);
(c) it must be something existent and determinable, for no one wishes to contract for a right that is valueless and illusory. Thus, one may not sell shares of a stock company that has no assets, or an indefinite house or lot or chattel;
(d) it must be something good and lawful, for one may not bind oneself to iniquity. If it is sinful (e.g., a contract to sell a house in order to spite a third party), the agreement is per se valid. But if the substance is evil (e.g., a contract for fornication made with a prostitute), the agreement is null before the performance of the promised sin; but it seems to many that after performance of the sin the promisor is obliged to pay the money promised, unless the law makes the contract void (see 1886 c). If the law merely denies protection to a sinful engagement, or forbids it under penalty, it would seem that after performance of the sin one may follow, as far as strict justice is concerned, the rule that right is with the possessor. In the United States immoral and illegal contracts and those that are opposed to public policy are generally regarded as null, but in some cases the law declares immoral conditions de futuro non-existent and considers the agreement to which they are added as valid (e.g., wills and gifts inter vivos in some codes).
1879. Sinful Contracts.--There is no form of contract that may not be made sinful as to its substance on account of the wicked offer or consideration (e.g., sale may deal with immoral objects, labor may be given to criminal projects), but there are certain forms of contract that are particularly open to abuse and hence are frequently associated with evil circumstances or results. Some contracts are often illicit according to natural law.
(a) Thus, a gift is sinful, on the part of the donor, when it is made by an employer for the purpose of seducing a servant, and on the part of the servant, when it is accepted for the purpose of encouraging the unlawful attentions of the employer; but if the gift is unconditional, there is no obligation in justice to return it.
(b) Borrowing is sinful, when the lender is in greater need, or when one becomes unduly obligated to the lender; lending is sinful when the lender cannot afford to part with the thing loaned, or when the borrower is encouraged in thriftlessness, or when he will make evil use of the thing borrowed, etc.
(c) Wagers are frequently sinful, since many of them are incitements to sin (e.g., a bet that another is afraid to get drunk), or results of sinful motives (e.g., bets made in order to deceive, or to satisfy avarice, or to live without work), or causes of great evils (e.g., destitution of families, frauds, scandal, and corruption).
(d) Gaming is sinful when the form of the sport is objectionable (e.g., the ancient gladiatorial fights in which the combatants killed each other), or when the motives or circumstances are wrong (e.g., to play as a professional gambler so as to avoid work, to play cards all day Sunday, to play for higher stakes than one can afford, to spend time in “gambling hells”).
(e) Lottery is sinful when the object is bad (e.g., the raffle of an important office with the risk that incompetent persons may be chosen), or when the circumstances are bad (e.g., if persons are led into superstition or idleness and prodigality).
(f) Speculation is sinful in many instances, since it often brings on a gambling fever that makes the speculator useless to himself and his dependents, and causes poverty and crime.
(g) Pawning of property is often unjustifiable, since it makes persons deprive themselves of necessary property in order to indulge in some useless or extravagant whim with borrowed money.
1880. Illegal Contracts.--For reasons of public policy the positive law puts its disapproval on many of the above-mentioned contracts, at least in certain instances.
(a) Thus, sometimes the law makes a contract unenforceable in court, though the natural obligation is not affected. Hence, if a wager is only denied a hearing before a judge, the winner may keep his gains, and the loser should pay.
(b) If the law merely declares that a contract is illegal, the effect seems to be that the contract retains its natural validity unless the party who has suffered by it wishes to disavow it. As to the sinfulness of such a contract, that depends on whether or not the law is penal or preceptive in intent. Thus, many regard laws that make betting illegal as preceptive under venial sin, while others regard them as punitive only. Other examples of illegal contracts are: gifts made to a judge in connection with a trial; lottery, in Great Britain and the United States; certain games of chance, in some States; and in Canon Law, as regards the clergy, alcatory games for money, speculation and trading (Canons 138, 142).
(c) If the law makes a contract voidable, the effect is that the contract possesses its natural force until adverse decision is given by court. Hence, if a wager is voidable in law, the winner may keep his gains until obliged by a judge to give them up, but the loser is not bound to pay, unless he confirms the wager.
(d) If the law makes the contract ipso facto void, the agreement loses its natural force (see 558-560). In most of our States, wagering contracts are illegal and void whether by statute or by judicial decision. In many of these States the statute permits the recovery of the money from the winner or the stakeholder. Gifts offered as bribes are invalid, and those who give or take such gifts are guilty of serious sin and of a criminal offense. In some of our States, certain gaming contracts are also null.
1881. Qualities Necessary in the Parties Contractant.--The parties contractant must have the following qualities:
(a) from natural law it is necessary that they have the use of reason sufficient to understand what they are doing. Incompetent are babies and the insane, and also those who are totally drunk or otherwise temporarily deranged. Less competent are the half-witted and those who need a guardian in important matters;
(b) from positive law it is necessary that they be not legally excluded. In Canon Law administrators of church property and solemnly professed religious are unable to make certain contracts (Canons 1527, 536). In civil law there are restrictions on the contractual powers of minors, wives, aliens, guardians and corporations. Persons not yet conceived are not capable in civil law of receiving a donation, and there are many prohibitions against the tender or acceptance of gifts by those who can reasonably be suspected of exercising undue influence or of being subject to undue influence.
1882. Legal Privileges of Minors.--The law grants certain benefits to minors and the like; for example, in some cases they are not bound by a non-executed agreement, while the other party is bound, or in an executed contract they may recover property without restoring or offering to restore the consideration, if they have nothing with which to replace it.
(a) Minors and other persons who are legally incompetent to contract, may avail themselves of the benefits of the law with a good conscience, if they are in good faith; for it is just that the law should protect those who are unable to protect themselves, and those who make contracts with such persons should know that they (the competent parties) act at their own risk.
(b) Minors and other persons legally incompetent may not avail themselves of the benefit of the law if they have acted in bad faith (e.g., if a minor by deceit induced the other party to sell to him).
1883. Qualities Necessary for Valid Consent.--The agreement or consent of the contracting parties must have the following qualities:
(a) it must be internal, that is, one must accept in will and not merely in words the proposal or consideration offered by the other party. If one consents only to the form of the contract, the contract is null, and the same is probably true if one does not accept internally the obligations of the contract; if one consents to the obligations, but does not intend to fulfill them, the contract is valid, but unlawful. One who contracts invalidly sins, and is bound in the external forum to keep the contract seriously made, and in the internal forum to repair the damage to the other party by giving true consent or making restitution. One who contracts unlawfully also sins, and is bound to the engagement;
(b) it must be external, that is, one must manifest in some sensible way one’s agreement to the proposition contained in an offered contract. Silence gives consent only when the contract is favorable to the party who is silent, or when that party should and easily could manifest his lack of consent, if the proposal did not please him. In the case of contracts between parties who are not in each other’s presence, the intimation to the offerer of the offeree’s acceptance is not necessary for validity, if the contract is gratuitous; but the contrary seems to be true, at least per se, if the contract is onerous. We shall speak later (1885) on the legal formalities required in contracts;
(c) it must be mutual, that is, there must be a meeting of minds in the same sense, or agreement of both parties to the same thing. Mutuality requires that consent be contemporaneous, that is, that the acceptance of one be given while the offer of the other still holds good. But it does not require that the parties be in each other’s presence, or that they contract through direct personal communication, or (at least according to natural law) that the knowledge of the accomplishment of mutual agreement be known to the offerer. The law in the United States generally is that an offer may be withdrawn immediately or after a reasonable time, unless it was made on time for a consideration; and that a contract between the absent begins only on receipt by the offerer of the acceptance of the offeree, if the former stipulated for this, or if the offerer uses one means of communication as his agency and the offeree another. In other cases it begins the moment that acceptance is entrusted to the agent of the offerer;
(d) it must be free, that is, it must have the advertence and voluntariness necessary for a human act. If the contract is of grave import, there should be the same kind of deliberation as is necessary for commission of a mortal sin (see 173 sqq.); if it is of lesser import, the deliberation should correspond with the seriousness of the case. But some authors think there should be perfect deliberation in every contract, since the contractants are assuming obligations of justice.
1884. Defects that Invalidate Consent.--The defects that vitiate consent by taking away knowledge or choice render contracts either void or voidable (see 40-55). These impediments are the following:
(a) error, which is a judgment of fact or of law in reference to the contract, not in harmony with the truth, but not maliciously caused by other persons. If error is substantial (that is, about the nature of the contract or the nature of the subject-matter of the contract), the agreement is naturally void; if error is only accidental (that is, about features of the contract, subject-matter or co-contractant, that are only incidentally intended), an onerous agreement is naturally valid, but positive law in the interest of freedom will often grant the privilege of rescindment (see Canon 1684, n. 2). But if error cannot be proved, courts will stand for the validity of a contract;
(b) fraud, which is error or mistake about a contract caused in one of the parties by the dishonest representations of the other party or of a third person (e.g., when an insurance agent deceives about the benefits, or a policy-taker deceives about his age or health). Fraud exists, then, when there is intention, at least indirect, to mislead, and statements, acts or omissions calculated to mislead; but the usual boasts of vendors and advertisers about the wonderful excellence of their wares are not fraudulent, since the public understands that such talk must be taken cum grano salis. The effects of fraud on the value of contracts are the same as those produced by error; but it should be noted that the person guilty of the fraud is bound to make good the losses of the injured party, even though the contract be valid and not rescindable, or though the guilty person be not a party to the contract;
(c) fear, which is a disturbance of mind caused by the belief that some danger is impending on oneself or others (see 41 sqq.). It makes a contract invalid in natural law, when it takes away all consent (e.g., when it overpowers the reason, or makes one dissent internally from what is agreed to externally), and probably also when it takes away perfect freedom in a gratuitous contract, or makes one enter into a contract for immunity from an unjust vexation; it renders an act or engagement invalid according to positive law in many special cases (e.g., the Canons declare null elections, resignations, marriages, vows, etc., which are made under the influence of fear). Contracts are considered naturally voidable if one of the parties unjustly extorts the consent of the other by grave fear, or if a third party intimidates a person into bestowing something through gratuitous contract; and the positive law generally treats agreements entered into under grave fear as rescindible (see Canon 103, n. 2). Fear unjustly caused, even though it does not make a contract void or voidable, is at times a reason for the duty of restitution, as when a third party by his unjust threats forces an innocent person to make expensive contracts as a measure of protection, and probably also when a third party directly constrains one to make an onerous contract with a person who knows nothing about the coercion. Fear, no matter how great, does not in any way weaken a contract, if there is consent and the fear is induced by a natural cause (e.g., a storm), or by a human cause acting justly (e.g., an injured man threatening a lawsuit);
(d) violence or coercion, which is like to fear, the latter being moral force and the former physical force (see 52). According to natural law, violence invalidates a contract, unless we suppose that it is only concomitant, as when Sempronius uses coercion to make Balbus sign a contract which Balbus is really willing to sign. Positive law does not recognize, or will set aside, agreements made under overpowering constraint (see Canon 103, n. 1).
1885. Form of Contract.--The form of a contract is the external manner in which, according to the positive law, the internal consent of the parties must be expressed and manifested.
(a) Thus, Canon Law in certain contracts (e.g., engagement of marriage, marriage, alienation of church property) requires specified solemnities under pain of nullity of act.
(b) Civil law in the United States designates various formalities to be used in transfers of property (e.g., that a deed for real estate be written, signed, sealed and attested; that a gift be made by delivery or equivalent act; that certain contracts be in writing; that no contract be of worth unless it be for a consideration, or else be on paper with seal attached). The law has the right to annul informal contracts ipso facto, but whether this is the intention in modern codes is a matter of dispute. The practical rule to be followed, then, is that the possessor is to be favored, unless there has been a court decision against his claim. It should be noted, too, that some legal conditions, such as valuable consideration in simple contracts, are required for enforceability, not for validity, and hence a good contract wanting some such condition, though indefensible before the courts, is obligatory in conscience.
1886. The Accidentals of a Contract.--(a) Bond is the agreement by the obligor of a contract to pay a certain forfeit to the obligee, if the former does not perform his contract or does not perform it before a certain date. This agreement obliges in conscience, if the promise was seriously made, if the penalty is not excessive, and if the breach of agreement is culpable.
(b) Oaths added to contracts have moral effects on the contracts themselves and also on acts contrary to them. As regards the contract, an oath adds the obligation of religion to that of justice, if the contract is valid and irrescindable; and the common opinion is that it strengthens a contract extrinsically, that is, it induces an obligation of religion to keep the promise, if the oath is invalid or rescindable by positive law only and in favor of a private privilege; but an oath in no way strengthens a contract that is naturally invalid or rescindable positively on account of the public good. As regards acts that are contrary to an invalid or rescindable contract that was confirmed by a valid oath, they are sinful, as being irreligious, but not invalid nor unjust (see 2260).
(c) Conditions are accidents or circumstances so added to a contract that the consent or dissent is made dependent upon their existence or fulfillment. An immoral condition, if unfulfilled, takes from the contract all obligation, exception being made for separable parts that are not affected by the immoral clause; but if it has been fulfilled, it seems that there is a moral obligation to pay the consideration promised (see 1878 d).
(d) Modes are accidents or circumstances so added to a contract as to qualify the rights or duties of the contractants, or the purpose, matter or time of the contract, but not so as to make the consent dependent on the fulfillment of the thing designated. Thus, if Titus leaves money to Balbus, chiefly because Balbus is his nephew, and secondarily because he imposes on Balbus the obligation of using the money for his education, Balbus in accepting the money accepts also the obligation, but the gift does not lapse if the obligation is not complied with. If a donor adds an immoral mode to his gift (e.g., that the donee use in immoral ways the money left him), this purpose is regarded as non-existent and the gift stands in spite of it. If an agent violates a mode (e.g., he pays $1001 when he was directed to pay $1000) but not a condition (e.g., that he purchase land and not a house), the contract stands.
1887. The Moral Obligation of Entering into a Contract.--(a) There is a duty of justice when one is under public or private engagement to make a contract. Examples are a merchant who opens a store for public patronage, or an auctioneer who holds a sale before invited patrons, or an owner who makes with another person a contract to sell, or a man and woman who make solemn espousals.
(b) There is a duty of charity when a neighbor is in such need that he deserves to be helped, for example, by a loan or by assistance to make a loan: “From him that would borrow of thee turn not away” (Matt., v. 42); “A good man is surety for his neighbor” (Ecclus., xxix. 18).
1888. Every valid contract obliges to faithful performance as a duty of conscience, even though it be unenforceable and without civil obligation. We shall discuss the properties of this obligation.
(a) Quality of the Obligation.--Onerous contracts oblige in virtue of commutative justice and under pain of restitution; gratuitous contracts oblige according to some from justice, according to others from fidelity, according to others from fidelity or justice as the obligor intends (see 1692, 1753). In practice one may follow the rule that a liberal promise or wager or other gratuitous contract obliges only from fidelity with no duty of restitution, unless it be certain that the promisor intended to bind himself in justice. One is responsible, however, for damages resultant on breach of promise. The obligation seems to be one of legal justice only when the thing promised is something on which a pecuniary value cannot be set and consists in compliance with law (e.g., in suretyship or bail for keeping the peace or appearing in court).
(b) Quantity of Obligation.--In onerous contracts the degree of obligation depends on the importance of the subject matter, and hence it is a mortal sin to violate a contract in which a grave right is concerned; in gratuitous contracts the degree of obligation depends entirely, according to some, on the will of the person who liberally binds himself, but others hold that it depends on the importance of the subject-matter.
(c) Subjects of Obligation.--The parties to the contracts and those who take their place (e.g., heirs, executors) or who are responsible for the contract (e.g., those who commanded the agreement) are morally bound to fulfill the agreement, while others are bound not to interfere with the fulfillment.
(d) Objects of Obligation.--Directly, there is the duty of observing what is contained explicitly or implicitly in the agreement, and indirectly of making good any losses caused by breach of contract. A rescindable contract obliges until it is lawfully disaffirmed by the party who has the right to break it; a quasi-contract imposes on the party who has benefited by the services or expenses of another a moral obligation of making compensation. If a contract transfers ownership (e.g., contract of sale passing title to buyer, mutuum), the transferee must bear the risks and expenses of the thing transferred; but if it does not transfer ownership (e.g., contract to sell, commodatum) or has not yet done so (e.g., contract of sale in which title will pass later, on delivery or payment), the transferer has the risk and expense (see 1796).
1889. Cessation of Obligation.--The obligation of a contract ceases in various ways: (a) by action of the contractants, as when a promisee renounces his right, or each of the parties to a promise has made a gratuitous promise in favor of the other and one refuses to keep his word; (b) by action of law, for example, by prescription, by annulment; (c) by impossibility, as when a thing freely promised has become unlawful or useless, or when the donee of a gift mortis causae dies before the donor.
1890. Theft.--Theft is the secret taking of what belongs to another, with the intention of appropriating it to oneself, against the reasonable wishes of the owner.
(a) It is a taking, that is, a carrying away of goods. But theft also includes the receiving or keeping of property, since the harm done is the same as when the goods are carried away. Hence, he who does not restore borrowed or deposited or found objects, or who does not pay back a loan, when he could and should, is a thief.
(b) It is a secret taking, that is, the property is taken away without the knowledge of the owner or lawful possessor, even though he be present. In this respect theft differs from robbery.
(c) It is the taking of property. This includes not only corporeal things (e.g., books, money, jewelry, clothing), but also incorporeal things (e.g., patents, trademarks, copyrights), and even persons if they are looked on as possessions. Hence, plagiarism or infringement of copyright or man-stealing or kidnapping (i.e., the carrying off of another’s slave or child) are forms of theft.
(d) It is the taking of property that belongs to another, that is, of goods of which another person is the owner, or lawful possessor as usufructuary, guardian, depositary, etc. Hence, one can steal from oneself by taking one’s goods by stealth from the bailee with the design of charging him for their value or of depriving him of their use to which he has a right.
(e) It is the taking away of goods with the intention of appropriating them to one’s own possession, use or enjoyment to the exclusion of the rightful owner. Hence, strictly speaking, it is not theft to carry away property with the intention of borrowing it for a time or of destroying it; but these are acts of unlawful possession or of unlawful damage. It is obligatory to take an object from another, if this is necessary to prevent the commission of a crime (e.g., to take away and hide the gun with which another intends to kill).
(f) It is against the wishes of the owner. This refers to the substance (that is, the conversion of the property to one’s use), not to the mode (that is, secrecy with which it is done). Hence, if the owner is unwilling that the property be taken, he who takes it is guilty of theft; if the owner is not unwilling that it be taken, but is unwilling that it be taken without his knowledge, he who takes it in this way sins at least venially, but is not guilty of theft in the strict sense.
(g) It is against the reasonable wishes of the owner or possessor; for no injury is done if he does or should consent to the loss. The owner does consent if the person who takes the goods is acting according to a general and recognized custom (e.g., when a servant takes things left over from her employer’s table, which it is certain the latter does not wish to keep); the owner should consent, if justice forbids that he prevent the taking (e.g., when a starving man is taking food from one who has plenty), or if domestic duty commands that he should give the thing taken (e.g., when a wife takes from her husband’s pockets the needed money he denies his family, for a wife and family have the right to receive from the head of the house support according to their station and means). But the owner is not bound to consent to the loss of his goods from the mere fact that he misuses them to his own spiritual disadvantage, or owes them in charity to the taker. Hence, it is theft to take a flask from the pocket of one who drinks too much, or to steal a book from one who is harmed by reading it, or to filch money from a rich man because one is poor and he will not give an alms.
1891. Unauthorized Use of Another’s Funds.--What is the guilt of one who uses for his own purposes the money of another entrusted to him for other purposes?
(a) There is no theft, for it is supposed that the purpose of the user is to make only a temporary loan of the money.
(b) There is an act of injustice, if the permission of the owner cannot be presumed; for the rights of an owner are violated when one converts his property to uses displeasing to him. Thus, if the prospect is that the owner may never get his money back or that he will lose profits by the use made of it, the guilt of unjust damage is incurred, at least in intention (e.g., a depositary uses a deposit to buy stocks on margin, or a company official makes an unauthorized loan instead of investing the amount for the company’s benefit).
(c) There is no sin, if the permission of the owner can be reasonably presumed; for to him who willingly consents no injury is done. Thus, if one who is managing the funds of another has the chance to make a large amount of money today by using those funds for himself but cannot get in touch with the owner, the latter’s consent can be presumed, if he will suffer no present loss and it is absolutely certain that his funds will be returned tomorrow. But on account of the risk that is ordinarily present, this case would be rare.
1892. Comparison of Theft and Robbery.--(a) They differ in species, for theft contains injustice to an owner in his property, but robbery, which is an unjust and violent taking of what belongs to another, contains injustice both to property and to person. The unwillingness of the owner in the case of theft is due to his ignorance of his loss; in the case of robbery it is due to intimidation or force. (b) They differ in gravity, robbery being according to its nature the more serious kind of stealing; for the robber does a twofold injury, and the owner’s unwillingness to be robbed is greater.
1893. Kinds of Theft and Robbery.--(a) There are many varieties of theft, the differences arising from the circumstances in which the stealing is done. Thus, he who steals from the Church is guilty of sacrilegious theft; he who uses the public goods for his private ends commits peculation; he who takes from his parents practises domestic thievery.
(b) There are also many ways in which robbery or rapine is committed. The following persons are guilty of robbery: pirates, bandits, highwaymen, burglars, usurers, profiteers, venal judges, unmerciful creditors who deprive debtors of necessaries, debtors who escape payment by fraudulent bankruptcy, profiteers, laborers who extort unjust wages, those who force subordinates to contribute graft, and blackmailers. Two forms of robbery are described in Scripture as sins that cry to heaven for justice, namely, defrauding laborers of their wages (James, v. 4) and oppression of the poor, which happens especially when one denies their rights to those who are unable to defend them. The following persons are also classed as thieves: pickpockets, spongers, smugglers, forgers, counterfeiters, embezzlers, and those who misappropriate funds entrusted to them.
In the civil law theft is also known as larceny, and is defined as the unlawful severance of personal property from the possession of its owner. The following kinds of larceny are distinguished:
(a) in respect to the manner of perpetration, a theft is larceny when the property is taken from the possession of the owner by one who had no possession, whether the latter be a stranger or a custodian; it is embezzlement when committed by one upon whom the owner had conferred temporary possession on account of a fiduciary relationship between them; it is false pretence when committed by one who procures permanent possession or ownership through fraudulent representations;
(b) In respect to the matter or quantity stolen, theft is called petit larceny when it falls below a certain sum fixed by the law, grand larceny when it exceeds that sum.
1894. The Sinfulness of Theft.--(a) From its nature theft--and, much more, robbery--is a grave sin; for it is opposed to the virtues of charity and justice, it is expressly forbidden in the Seventh Commandment (“Thou shalt not steal,” Exod., xx. 15), and it excludes from eternal life (“Neither thieves nor extortioners shall possess the kingdom of God,” I Cor., vi. 10). The thief attacks the sacred right of the individual to his property, and imperils the peace and stability of society itself. Theft is a grave sin, even when it is committed by little and little, as happens when a merchant gives underweight habitually: “A deceitful balance is an abomination to the Lord” (Prov., xi. 1). The proposition that restitution for a large sum taken in parts at different times is not a grave duty was condemned by Innocent XI (Denzinger, 1188). Canonical penalties for theft include exclusion from acts and offices, censures, and deposition (Canon 2354).
(b) From the imperfection of the act theft may be only a venial sin, for example, when the thief is a kleptomaniac and steals without advertence, or when he is invincibly ignorant that the thing taken is not his own or is of great value, or from the smallness of the matter involved (e.g., when the thing taken has little value, or the owner is opposed rather to the stealthy manner of taking than to the taking, or is only slightly unwilling to lose the goods).
1895. Theft of a small amount may be a mortal sin (see 187). This may happen: (a) on account of the internal or subjective circumstances, as when the thief intends to steal as much as he can or a large amount here and now, or when he intends to steal a small amount here and new but to keep this up every day until he has stolen a considerable amount, or when a child steals a small sum from its parents and falsely thinks that the theft is gravely sinful in itself; (b) on account of external or objective circumstances, as when the amount taken today is small but constitutes, with amounts previously taken, a large sum, or when the thief foresees serious consequences from his act (e.g., that the person from whom the goods are taken will fall under suspicion and be discharged or arrested). It should be noted, however, that the consequences of the theft do not necessarily make the sin grave precisely as it is a sin of theft (e.g., in the case just given the theft was a venial sin, but the unjust damage was a mortal sin), or even precisely as it is a sin of injustice (e.g., if one steals a picture of small value, foreseeing that the owner will be afflicted beyond measure at the loss, the sin against justice is small, but the sin against charity is mortal).
1896. The determination of the amount that constitutes grave matter in theft or robbery (or in unjust damage) is a very difficult task, because the factors upon which the injury depends are to some extent doubtful and vary in particular cases. Hence, there is a great diversity of opinion among moralists on this subject, and it will frequently be uncertain in an individual case whether a theft is mortally or only venially sinful in itself. But on account of the spiritual and temporal interests that are concerned it is necessary to give at least general rules for direction that will enable one to distinguish between grave and venial theft, and to know when the duty of restitution is serious, when light.
1897. Moralists are in agreement on the following points:
(a) the standard for measuring gravity of matter is not an invariable one, but will differ according to circumstances of times and places. Thus, money has much less purchasing power today than it had before the Civil War, and the same amount will not go so far nor last so long in the United States as in some countries of Europe. Hence, other things being equal, it is less harmful to steal the sum of $10 in 1958 than it was to steal the same sum in 1858, less harmful to steal that amount from an American than to steal its equivalent from a European;
(b) the standard for a particular country and period is to be interpreted morally, not mathematically; for it depends on the opinions or estimates of the prudent, which after all are only approximations and subject to revisions. Hence, it would be absurd to draw such a hard and fast distinction between grave and venial theft--for example, to decide from the amounts alone that he who stole $50 is certainly guilty of mortal sin and fit for hell, while he who stole $49.99 is guilty of venial sin only and not fit for hell. The figures given by moralists for grave matter are averages, and hence they cannot be expected to suit each individual locality or moment or injured person. But, being based on actual conditions, they are serviceable. If a sum stolen is much above or below them, they indicate truly the theological species of the sin; if it is only a little above or below them, they afford a basis for probability, or at least show that there is room for doubt.
1898. Moralists are also at one in measuring the injury of theft by the following considerations:
(a) it should be estimated by the property loss, that is, that theft should be deemed a grave sin which in view of all the circumstances and the common opinion indicts a notable loss on the owner in his property rights. This is a matter of common sense, for every one can see that it is a very different thing to steal a cent and to steal $100.
(b) it should be estimated by the personal injury, that is, by the unwillingness of the proprietor to suffer the loss. This is also clear, since the unwillingness of the proprietor is one of the ingredients of theft, as was explained above in the definition, and everyone will readily grant that an amount which would be notable if stolen from a stranger, would not be notable if stolen from an indulgent parent.
1899. There are two opinions about the estimation of the property loss.
(a) Thus, an older opinion held that the standard should be an absolute one, that is, that the loss should be determined independently of the wealth or poverty of the person injured, since the financial situation of this person is a purely extrinsic circumstance of the theft. The rich man has just as much right to his $10 as the poor man has to his $10, and it is therefore just as injurious to deprive the former of the sum as it is to deprive the latter. What is a mortal theft in one case is a mortal theft in every case.
(b) A later opinion, which seems to be the common one today, distinguishes two standards: an absolute one, which fixes one highest amount that is always grave matter on account of its magnitude, however wealthy the loser may be, and a relative one, which proposes a scale of lower amounts that are grave matter on account of the economic condition of the persons stolen from. It is argued that a relative standard should be set up, since the injury of theft is certainly felt more by those who have less means to fall back on; and that an absolute standard is also necessary, since without it the property of the rich would not be sufficiently safeguarded and the peace and order of society would be endangered.
1900. Opinions on the Amounts that Are Grave Matter.--(a) The older opinion, according to which there is only one invariable standard for all classes and conditions, regards as grave matter the amount necessary to support for a day, according to his state and obligations, a man whose financial condition is midway between wealth and poverty; for the loss of a day’s support is usually looked on as a serious loss, and a standard for all should be taken from the average. This daily support amount may be reckoned from the amount of daily wages or income. In the United States in 1955 the average daily wage was between $14 and $15, but, if only skilled laborers or those who are in moderately prosperous circumstances are considered, the average would be considerable higher. Perhaps it would range between $25 and $30. Or if we strike a medium between the highest and the lowest figures given by the advocates of two standards, we should arrive at approximately $30 or $35.
(b) The common opinion today fixes the absolute amount, which is grave matter even when theft is from the wealthiest person or society as the equivalent of a week’s wages for the head of a family living in fairly good circumstances but dependent upon his work for its support. As to the actual amount, authors differ. Thus, Father Francis Connell, C.SS.R., wrote in 1945 in American Ecclesiastical Review (p. 69): “To lay down a general norm in view of actual conditions and value of money, it would seem that the actual sum for grave theft would be about $40.” In 1946, writing in the Homiletic and Pastoral Review (p. 694), Father Joseph Donovan, C.M., stated: “It is hard to see how less than $100 could be absolutely grave with the chances of a higher amount being probably so.”[*] This sum was criticized as being excessive and did not meet with ready acceptance by all moral theologians. On page 127 of the third printing of his Outlines of Moral Theology (1955), Father Francis J. Connell, C.SS.R., suggested $75 as a reasonable absolute sum considering the value of money at the time, and, as a practical norm, the sum has been acceptable to most confessors and authors. Relatively grave matter corresponds with the amount needed to support a worker and his family for a day or, according to some, the amount required for the support of the worker alone. Relatively grave matter would range from about $5 from a poor person on relief, through $20-$35 from skilled laborers and persons in comfortable circumstances, to $75 from the wealthy. The latter sum constitutes the absolute standard. For a general norm to establish relatively grave matter, then, an acceptable procedure is to take the daily earning power or expenses of those who do not belong to the wealthiest classes, but who just barely make a living by reason of their work or charity.
[*] This is not to suggest that the authors cited hold to the “week’s pay norm” as the standard. Father Connell, for example, defines the absolute as “a sum which is so large that society would suffer much if it could be stolen without grave sin even from the richest or from a wealthy corporation” (op. cit., pp. 127-128). The interest in citing the authors is to show the precise sums suggested by them at various times regardless of the norm used in arriving at the particular amount suggested.
1901. What is grave matter in theft of sacred objects? (a) If these objects have a value that may be measured by money (e.g., the gold or jewels that enter into a reliquary), grave matter is estimated by the material value, just as in profane objects. (b) If these objects have no monetary value (e.g., sacred relics), grave matter is judged from the dignity or rarity of the object. Thus, it would be a serious sin to steal even the smallest splinter from the True Cross.
1902. It was said above (1898) that the gravity of theft is estimated, not only by the property loss, but also by the personal loss, that is, the reluctance, unwillingness or sorrow of the owner at the deprivation of his goods. This does not mean that a greater unwillingness on the part of the owner increases the gravity of the theft, if the owner’s unwillingness is excessive or unreasonable (e.g., it is not a mortal sin of theft to steal a dollar from a miser, if the miser on account of his love of money feels the loss as keenly as another person in his place would feel the loss of $40). But a less unwillingness of the owner diminishes the injury, and hence increases the amount necessary for grave matter. There are three reasons especially that diminish the unwillingess of the owner at the loss of his property.
(a) Thus, by reason of the persons who steal, the owner is less unwilling when these persons have a greater claim on his affection (e.g., his children or wife), or when custom permits them to some extent a greater freedom than is granted to others (e.g., servants, employees).
(b) By reason of the things stolen, the owner is less unwilling when these are things of less value, like crops, that are produced mostly by nature and are left exposed, such as fruits growing by the wayside, branches and pieces of fallen timber lying on uncultivated land.
(c) By reason of the manner of the theft, the owner is usually less unwilling when goods are taken gradually and on several occasions, or piecemeal, than when they are taken all at once.
1903. The Common Opinion on Domestic Thefts and Grave Matter.--(a) In theft from one’s parents about double the usual quantity is required. But in an individual case the parents may be just as unwilling, and with good reason, to be despoiled by members of the family as by outsiders, and in such a case the rule would not apply. Hence, in considering thefts by children one must bear in mind the ability of the family to suffer the loss, the number of the children, the uses to which the stolen goods are put, the liberality or thrift of the parents, the affection or dislike which the parents have for the child who steals, etc. Thus, if poor parents are denying themselves in every way in order to rear and educate a large family, thefts from them are a serious matter.
(b) In theft from one’s husband even a greater amount is required. But there are exceptions, as when the husband is especially unwilling to have his property stolen by his wife, for example, when the money she takes is devoted, not to the benefit of the family or other useful purposes, but to vanity or sin, or to the great detriment of the husband or family (see 1799).
1904. Theft from One’s Wife or Minor Child.--(a) According to the law in the United States, a wife cannot steal from her husband nor the husband from the wife, but this principle has reference to the common property of which husband and wife are joint tenants (Robinson, Elementary Law, Sec. 563). Both husband and wife may have also their own separate property, and in that case either of them is guilty of injustice if he or she damages or takes without leave the goods of the other.
(b) According to American law, the father has the right to the earnings of his minor children who live with him and receive their maintenance from him; but the law gives the father no right over the separate real or personal estate of these children. Hence, a parent would be guilty of theft if he unlawfully took or used the individual property of his child.
1905. The Common Opinion on Thefts Committed by Employees.--(a) If the things stolen are small articles which the employer customarily supplies for his help (e.g., food and drink for domestic servants, pencils and paper for his clerks), the theft is not serious as a rule. But there are exceptions, as when the employee gives or sells to others these articles, or when he uses or wastes them to such a degree that the employer suffers a considerable loss. And one should also consider such circumstances as the great or small value of the services given by the employee, his good or bad standing with the employer, etc.
(b) If the thing stolen is not meant for consumption (e.g., furnishings of the home or office, merchandise of the store, tools or machinery of the factory) or is of a very precious kind (e.g., rare wines or expensive brands of tobacco), grave matter is of the same amount as when an outside person does the stealing. In fact, the guilt of the employee is more serious on account of his abuse of confidence or violation of contract. The property of employers would be subject to constant risk, if employees were permitted greater liberties than outsiders.
1906. Theft of Things about Whose Loss the Owner Is Less Concerned.--(a) Vegetation that Belongs to the Public and Is Left Unprotected.--If these things are of minor importance (e.g., wild fruits or berries, broken twigs, branches, etc., in public lands), it seems that it is not theft to take them, at least when one is poor and a member of the community; for laws against such acts are generally regarded as penal. But one sins, and may even sin gravely, when extensive damage is done to public property (e.g., by cutting down trees, carrying away flowers and plants, injuring shrubs, etc.).
(b) Vegetation that Belongs to Private Parties and Is Left Unprotected.--If only a small quantity is taken (e.g., an apple or a bunch of grapes hanging over a public highway taken by a passerby), it seems no theft is done, unless the owner or law expressly forbids. But it seems to be a venial sin to take more (e.g., as much as a hungry person can eat), and a mortal sin to take a quantity whose market value is equal to grave matter.
1907. Travelling Without Paying Fare.--Is it theft to ride in public conveyances without paying the fare?
(a) If one rides without payment or ticket, it seems that theft is committed, unless the company is willing to give a free ride. It may be said that the company suffers no loss on account of one passenger who has not paid for his transportation, since the same number of cars and the same expenses would be required even without that passenger. But since the owners are unwilling to furnish their service gratis, he who takes it without pay is guilty of theft.
(b) If one rides without payment, but uses the ticket of another, there is no injustice if the rules of the company permit this (e.g., A buys a round-trip ticket, but gives the return ticket to B), but there is fraud if the rules of the company and the agreement of the purchaser make the ticket non-transferable (e.g., B uses the half-rate ticket which A had received as a personal privilege from the railroad company).
1908. Small Thefts Which Amount to a Large Sum.--Small amounts stolen may accumulate into a large amount. This happens in the following ways: (a) the thief takes small sums on different occasions from the same person or from different persons, and continues at this until he has stolen a considerable amount; (b) the thief conspires with other thieves to steal on the same occasion from one person or several persons, and, though the sum he steals is small, the sum taken by the whole group is considerable. Similarly, petty damages or vexations may accumulate into a mortal injustice. Thus, if Claudius, aiming to break down the health, sanity, success, reputation, business, etc., of Balbus, plans and carries out a systematic campaign of small injuries daily repeated for years, Claudius is guilty at least in purpose of serious damage.
1909. Small thefts that grow into a large theft are mortally sinful in the following cases:
(a) they are mortally sinful by reason of the previous intention when one steals a little now and a little again, but has it in mind from the outset to steal a total sum that will be grave matter, or when one conspires with others to steal a notable sum although one’s own share will not be a notable amount. In these cases the purpose is to commit a grave injustice, either against an individual (if all is taken from one person) or against society (if portions are taken from various persons), and hence one is internally guilty of grave sin, even though one has not yet performed it externally. Examples are merchants who use false weights and measures, or who adulterate their commodities with small portions of water, etc., and thus make large profits by minute cheating;
(b) they are mortally sinful by reason of the subsequent intention when one had no purpose to steal a large amount, but adverts to the fact that a small theft here and now committed will constitute grave matter if added to previous petty thefts, or that the amount of stolen goods now possessed is large, and nevertheless resolves to go ahead with the theft or to retain the stolen goods. This does not mean that a number of venial sins coalesce into a mortal sin (see 189), but only that the object of a sin which is slight in itself becomes serious on account of the circumstance that it is morally connected with previous sins. The last act in a connected series must not be taken singly, but in connection with the acts that precede, as is seen in the violation of a fast or in omission of parts of an hour. In the cases now considered, therefore, grave injustice is actually and purposely done, and mortal sin is committed, even though there was no thought of this in advance.
1910. The case of young men who are educated free of charge in the expectation that they will go on to the priesthood and who do not persevere.--(a) If they act in bad faith (i.e., if they enter the college or seminary merely to get their education, or to avoid work, or if they remain after they have abandoned thought of the clerical state), they are guilty of theft and bound to restitution.
(b) If they are not in bad faith (i.e., if they wish to try out their vocation, or if they begin with the intention to persevere), they are not guilty of injustice. This is true, even though they are rejected on account of idleness or other faults, provided there was no intention to defraud.
1911. In the following cases small thefts which added to others make a large sum seem not to be the cause of grave loss, and hence not mortally sinful:
(a) the small theft of one person following on the small thefts of others, when there is no bond of example, advice, conspiracy, etc., to unite the various thefts; for none of the thieves can be held responsible for the part of the loss caused by the others. Example: Titus, knowing that Balbus has been cheated by various persons to the amount of $9 and that $10 will be a serious loss to Balbus, proceeds to steal $1 from Balbus:
(b) the small thefts of several persons who steal together, and who influence one another only by example; for example is an occasion, not a true cause of the imitator’s act (see 1447, 1763). Example: Sempronius and Claudius go into a store together and find that there is no one around. Sempronius thereupon steals a number of articles and leaves. Claudius notices this and steals other things, which will make the total loss serious.
1912. Moral Connection between Repeated Acts of Theft.--The moral connection between repeated acts of theft by one person is necessary, as was said, in order that these acts unite into one grave sin. This moral connection does not exist, however, if the series is broken by interruption or revocation.
(a) Thus, the connection is broken by interruption when there is a long interval between small thefts, because thefts that are small and infrequent do not inflict severe loss on individuals or society. This supposes, of course, that there is no intention to practise small thievery habitually in order to become enriched by it, but that one steals now and then as opportunity or necessity occurs, or (according to some) that one intends to steal only small amounts and at long intervals.
(b) The connection is also broken by restitution or revocation. It is clear that, if the thief has given back his former thefts, they should not be computed with later thefts; and it seems also--though some do not admit this--that, if he has sincerely resolved to give back things taken before (e.g., things which are useless for him), there is no moral connection between the past thefts and a theft he is committing now.
1913. Interval of Time between Acts of Theft.--The interval of time that breaks the connection between small thefts cannot be determined with mathematical exactness, but the following rule seems to be accurate enough: thefts combine to form a great theft only when considerable property is taken by degrees, but within such a brief period of time as to be of notable advantage to the thief and of notable disadvantage to the loser. Some moralists think that six months is a long space, sufficient to prevent union between thefts, but that two months is too short a space to prevent the union; others, on the contrary, believe that the amounts stolen should be taken into consideration; and hence that the following intervals between thefts separate them into distinct venial sins without coalescence:
(a) a period of one year between thefts, each of which almost amounts to grave matter, when the property is kept (e.g., when a dressmaker who has kept not a little of her patron’s material of a twelvemonth ago does the same thing again this year);
(b) a period of two months, when the matters are almost grave, but the property is not kept (e.g., when a thief who beat a restaurant out of the price of a very elaborate meal at the beginning of January does the same thing at the beginning of March). But it is hard to see how one could have the habit of stealing in this way and not have the intention of stealing a large amount, for a person who steals what is almost grave matter every two months or so must realize that he will shortly be enriched to a considerable extent by his dishonesty. Moreover, the interval of two months might be needed by the thief for avoiding suspicion;
(c) a period of one month, when the thing stolen falls far short of grave matter (e.g., a meal of simple fare plainly cooked and served);
(d) a period of about two weeks, when the matters are very small (e.g., when a thief takes a few secret sips from a wine bottle on each of his fortnightly visits to a certain house, or carries away some trifling object as a souvenir). These thefts would not surpass five or ten cents a month;
(e) some authors think that one week or perhaps even one day will prevent coalescence between extremely small thefts; and surely there are some paltry objects (e.g., a pin or needle, a match, a small lump of coal, a piece of string) which would not total a large value even after many years have passed.
1914. Species and Number of Petty Thefts that Coalesce into Grave Matter.--(a) If the thefts proceed from a previously formed purpose of stealing by installments a large sum, each of them is a mortal sin, but they do not form numerically distinct sins, unless there was a revocation of the intent (see 214, 215).
(b) If the thefts did not proceed from a previously formed plan, those that preceded the culminating theft (i.e., the one whose addition makes the quantity grave) are so many separate venial sins of theft. The culminating theft is a mortal sin, if the thief adverts to the fact that he has now stolen a notable sum; otherwise it is a venial sin. The act, after the gravity of the matter has been noticed, is the initial mortal sin, if it means consent to the grave injustice done (e.g., retention of the ill-gotten goods, intention not to make restitution); it is an additional mortal sin, if it means a renewal of consent to the grave injustice previously done (e.g., the theft of a new small amount with the purpose of keeping it as well as the rest).
1915. Sum Required for Grave Matter in Petty Thefts that Coalesce.--(a) According to one opinion, it is always larger than the sum required for grave matter in a theft of the same amount on a single occasion; for the owner does not feel the loss so much when his goods are stolen in small amounts and at different times. Thus, a man is less unwilling to have $100 stolen from him through pilferings of cents and dollars over a period of a year or two than to have it all stolen from him on one day.
(b) According to another opinion, grave matter for petty thefts is not larger than grave matter for large thefts of the same amount, if the petty thief had the intention all along to accumulate a notable sum. But some who are of this opinion make an exception for the case when the petty thief steals not from one but from several owners, for in this way the loss is distributed and less harm done. Grave matter in this case, they say, is the same as absolutely grave matter.
1916. There are various opinions on the amounts required for grave matter in the case of petty thefts that coalesce. (a) If all the thefts are against the same person, the usual opinion fixes grave matter at one and one-half times or twice the amount fixed for large thefts. Some authors limit this to cases wherein the thief had not the purpose from the beginning to steal a great amount (see 1915), and some state that the amount for large thefts which is considered is the relative, not the absolute sum. (b) If the thefts are against different persons, some think that grave matter is the same as the absolute matter of one large theft, while others make it one and one-half times or twice that amount. Here again some moralists limit these increases in the sum for grave matter to cases wherein there was no purpose from the beginning to steal a notable amount.
1917. Theft from Joint Owners.--Is it a grave sin to steal a considerable amount of property that belongs to joint owners? (a) If the amount taken is absolutely grave, the sin is serious for the reasons given in 1898 sqq.; (b) if the amount taken is relatively grave (e.g., because a community is very poor, or because the owners are only two or three and the individual loss is heavy), the sin is serious; (c) if the amount taken is not relatively grave, as happens when an organization is not poor and has many members or when the loss will be so distributed among the joint owners as to be little felt by them individually, the sin is not serious.
1918. Restitution in Cases of Theft.--(a) Restitution is owed for the property stolen. He who stole a serious amount but gave back part, retaining only what is light matter, is bound under venial sin to restore the rest. Confessors should urge restitution even of small amounts, when possible, in order to deter men from theft, and it may sometimes be useful to require children to seek a condonation from their parents for a similar reason. (b) Restitution is owed also for damage caused by the theft (see 1895). Thus, if one steals the tool of a poor farmer, which is of little value in itself but which brings on him a serious loss, one is responsible for the loss as well as for the tool.
1919. Cases of Doubt.--(a) Doubts of Law.--The rules given by moralists on grave matter in thefts are not to be regarded as certain and authentic, since they are only the opinions of theologians, and have no obligatory sanction from the Church. They are reasonable and well founded, indeed, but in spite of them there will occur cases wherein it is doubtful whether a theft is mortal or venial (see 1896). It is no disgrace to be ignorant in such difficult cases, for St. Augustine himself admitted that he did not always know where to draw the line. Hence, confessors should not feel obliged to decide with finality in every instance whether the sin committed was in itself grave or light; on the contrary, it will sometimes be necessary to avoid a definite answer, while calling attention to the sinfulness of all theft and the duty of restitution. But the obligation of restitution should not be imposed as certain, where the doctors disagree.
(b) Doubts of Fact.--The application of the rules for grave matter will also be at times very difficult on account of uncertainties about circumstances of time, person, etc. In such cases one must have recourse to the systems for decision in the presence of a doubtful conscience. If a thief does not know from whom he stole, it may be doubtful whether the matter is relatively grave or only light; but the presumption then will be that the loser was a person of average means. Again, when there is a strong likelihood that an owner was not greatly unwilling, one must insist that the thefts cease for the future, but one cannot always impose restitution. If a petty thief does not know how much he stole, or whether all the thefts were from the same person, or whether the intervals between the thefts were great or small, or whether he had the intention from the outset to take a large sum, the confessor will have to form an opinion by questioning the penitent on the time of his last confession, the amounts he generally took, the general frequency of the thefts, etc.
1920. Conversion of Others’ Property.--The conversion of property owned by others or held by them may be permitted, or at least tolerated, when the owner or possessor would be unreasonable if he objected as in the following cases:
(a) in extreme necessity, for according to natural law each one has the right to preserve his life by using the temporal things of the earth (see 1571). In danger of death things necessary for escaping the danger become common property, and no injury is done by the person in danger if he uses the goods of another person to save his own life;
(b) in certain cases when occult compensation is the only way in which one can defend or secure one’s right to property, for it is not wrong to take what is one’s due, if this is done without harm to the rights of others.
1921. Conditions for Lawful Occupation of the Goods of Others in Extreme Need.--(a) The occupation must be necessary for securing one’s own or another’s natural right to some supreme good, such as life or what is almost the equivalent of life (e.g., freedom from cruel restraint, escape from fearful disease). A supreme good is at stake, then, when one is in extreme, quasi-extreme, or most grave need (see 1236), that is, exposed to the certain or very probable peril of losing life, limbs, liberty, sight, chastity, etc.; occupation is necessary when there is no other way (e.g., by begging) to avert the danger.
(b) The occupation must be made without detriment to the rights of others. Hence, one may not occupy more than is really necessary to escape the danger; one may not occupy at all if the owner is situated in an equal danger (e.g., one may not take the plank from a man in danger of drowning in order to save oneself); one may not retain the thing taken, if the danger has passed (e.g., one who commandeered his neighbor’s car in order to escape from a thug must return the car). The neglect to ask permission, however, does not exceed a venial sin and does not impose the duty of restitution, if there is a real reason for occupation. One may not take the goods without permission, if this can be obtained without too much difficulty; nor forcibly, if possession can be had peaceably.
1922. Restitution for Occupied Goods.--Is the occupier bound to restitution for occupied goods that were consumed (e.g., food and drink), if he afterwards becomes able to pay for them?
(a) If the occupier had no prospect at the time of ever being able to pay for what he took, he is not bound to restitution--not because of possession, since the thing has perished, nor because of the taking, since there was no onerous contract, nor because of injury, since he acted within his rights. The owner cannot complain at this, since charity obliges him to give of his own free will to one who is in supreme need and not to expect that the alms be paid back, while justice forbids that he impede the appropriation of what is needed by the person in distress. It seems, however, that a case of this character would rarely happen, and, if it did happen, the more decent thing would be to pay for what was used. Some moralists think that more probably there would be an obligation of justice to do this, since occupation is lawful only in so far as it is necessary.
(b) If the occupier had the prospect at the time of being able to pay for what he took, he is bound to restitution; for one should not occupy more than is necessary, and, if a loan suffices to tide one over a difficulty, it is not right to expect a gift. Hence, men who raid bakery shops in times of food shortage, are bound to make restitution to the bakers when able.
1923. Occupation in the Case of Merely Grave Necessity.--Is it lawful to occupy in merely grave or ordinary necessity?
(a) This is not lawful, for otherwise the doors would be opened to thefts without number, and both the security of property and the peace of the public would be at an end. Innocent XI condemned the proposition that it is permissible to steal in great need (Denzinger, n. 1186). (b) Such occupation is less sinful than to occupy without necessity, and indeed the theft may be only venial if one is in grave need and has vainly sought work or charity to relieve the difficulty, as when a poor man who is not able to give his children all the food they need steals provisions now and then.
1924. Occupation of a Large Sum by One in Dire Need.--(a) One opinion holds that even for the sake of avoiding death this is not permissible, for one has no right to extraordinary means for the protection of one’s life.
(b) A second opinion maintains that this occupation is lawful, under the conditions given in 1921; for life is more precious than even a large sum of money, and in such extreme need property right yields to the right to life.
(c) A third opinion distinguishes between the case in which extreme necessity is proximate or urgent (e.g., an unarmed Watchman is threatened with instant death if he does not hand over at once the money he has in charge) and the case in which it is only remote (e.g., the doctor tells a poor man that he will die shortly from tuberculosis unless he goes to a more healthy altitude, but the patient is too poor to follow these instructions). In the former case the person in need may take what is necessary (on account of the reasons for the second opinion and also because the civil laws allow this), but he is not bound to do so (on account of the reasons for the first opinion); in the latter case, more probably he has no right to occupation, for this would be prejudicial to the public welfare and is moreover strictly forbidden by civil laws (see 1571, 1253).
1925. Duty of the Owner towards One in Dire Need.--(a) In charity the owner is bound to come to the aid of the needy person; but, if he neglects this duty, he does not offend justice and is not held to restitution (see 1240, 1753). (b) In justice the owner is bound not to prevent the needy person from taking or using what he is entitled to; but should the owner do this and the necessity cease, there is no duty of restitution, for the right of the needy person ends with the necessity.
1926. Lawfulness of Receiving Support from a Thief.--Is it lawful for the wife and family to receive support from the head of the family, when he is a thief?
(a) It is lawful when the persons stolen from are not thus deprived of their goods or of the prospect of restitution. This happens when the actual support does not come from the stolen property, and the thief is able to make restitution from other property that belongs to him, or the wife and children earn as much for the family by their work as they receive in support. In this case the family may take from the thief even things that are not necessary for their support.
(b) It is lawful when the persons stolen from are deprived of restitution, but the obligation of restitution has ceased on account of grave necessity (see 1797). This happens when the support does not actually come from the stolen property, but the thief is unable to make restitution from his own property without depriving his own family who are in grave need. In this case the family may take from the thief only such things as are necessary for them according to their station in life.
(c) It is lawful when the persons stolen from are deprived of their goods, but the right to occupy these goods has arisen on account of the extreme necessity of the family (see 1920 sqq.). This happens when the support comes from the stolen property itself. But the family may use only what is really necessary for the relief of their dire distress.
1927. Compensation.-Compensation is of two kinds, strict or legal and wide or extra-legal.
(a) In a strict sense, compensation is counterclaim, or the comparison of the debts of two persons to one another with a view to the cancellation of one or of both debts. This method of extinction of debt is allowed by law in order to reduce the amount and expenses of litigation. It is known as recoupment or offset when a defendant brings a cross-action against a plaintiff for non-fulfillment by the latter of some part of the contract in controversy, and as set-off when the defendant introduces the debt owed to him over against the debts sued for by the plaintiff. Counterclaim is just when no injury is done to one party (e.g., it would be unjust to keep the horse of Titus which you had borrowed, simply because Titus owed you a debt equal to the value of the horse, for the horse might be worth more to Titus); it is legal when recognized by the law (cfr. 1797, 1798).
(b) In a wide sense, compensation is the summary recovery by a creditor of the thing or the debt owed him by the debtor. The recovery is summary in the sense that the creditor does not go to law, or proceed according to law, but takes from the debtor either openly (open compensation) or secretly (occult compensation) what is owed.
1928. Lawfulness of Occult Compensation.--(a) Ordinarily, or per se, it is not lawful; for it contains such evils as disregard of due process of law, scandal, infamy, public disturbance, the menace that the common good will be harmed by frequent abuse, the danger that the debtor will suffer loss through a second payment of the same debt, etc. Innocent XI condemned the proposition that domestic servants may practise occult compensation when they decide that their services are worth more than the salary they are receiving (Denzinger, n. 1187). (b) Exceptionally, or per accidens, it is lawful; for under certain conditions it offends neither public nor private welfare and it is necessary for the vindication of a right. Just as the natural law gives authority to occupy the goods of another in case of extreme need, so does it justify occult compensation in the special cases just mentioned.
1929. Unlawful Occult Compensation and Restitution.--Does unlawful occult compensation oblige one to restitution?
(a) If the compensation is not only unlawful but also injurious (e.g., a servant takes what is not due her under the pretext of compensation), it is not rightly called compensation, but is really theft, and restitution is due. (b) If the compensation is unlawful but not injurious (e.g., a servant takes what is really due her, but she could have obtained it by asking for it), there is no theft or duty of restitution, since the property of another was not stolen.
1930. Conditions Required by Commutative Justice for Occult Compensation.--(a) Before the Compensation.--There must be a strict right to the thing taken; for, if there is no such right, one takes what belongs to another against his will, or commits theft. Hence, if an employer has freely promised to make a gift to his servant and then fails to keep the promise, the servant has no right to take what was promised, since it is owed from liberality or fidelity or gratitude, but not from commutative justice. The same applies to a non-necessary heir who has been left nothing in a will, since he had no strict right. It is also unjust to take secret compensation for a debt that has not yet fallen due.
(b) During the Compensation.--No wrong must be done to the debtor (e.g., by taking more than is due, by taking an article which the debtor needs for earning his living) or to third parties (e.g., by taking goods deposited by them with the debtor). If possible, compensation should be made from goods of the same nature and kind as those that were taken or damaged, for the debtor should not be forced to part with things he wishes to retain and which are not necessary for the creditor’s satisfaction.
(c) After the Compensation.--One must avoid injury to the debtor (e.g., the keeping of a payment which is now not owed by him and which one can refuse or return to him) and to third parties (e.g., the casting of suspicion on a servant in order to divert attention from one’s act of occult compensation).
1931. Must the strictness of the right be morally certain, or, in other words, must reasonable doubt of fact and of law be excluded?
(a) As to doubt of fact, it must be excluded; for in such doubt the presumption is with the possessor, or at least it is certainly wrong to perform an act that will probably be injurious to another person (see 713). Moreover, everyone can see that the public good would suffer greatly, if occult compensation were permissible when the existence of a debt is uncertain. Hence, if it is only probable that one sold goods to another person or that another person has not yet paid for services received by him, occult compensation must be avoided.
(b) As to pure doubt of law, the question is controverted. Some think that it also must be excluded, since the possessor should not be deprived of possession unless it is certain that there is a right to do this. Others think that occult compensation may be used in spite of a mere doubt of law, if the doubt concerns only the mode of making the compensation, or if the probability in favor of the creditor is so strong that a judge could conscientiously decide for him against the possessor. Examples of doubts of law here are three cases that are in dispute among authors, namely, whether one may take money as compensation for defamation that will not be repaired by restoration of fame (see 1802, 1803), whether one may deny reparation for defamation when one has been defamed by the other party and has not received restitution, whether one has rights to a legacy of which one is deprived on account of a mere informality in the document. In these cases the right is held by some authorities to be probable, but the decision in a particular instance should be made only on the advice of a learned and conscientious person, since the matter is very complicated and there is great danger of self-deception.
1932. Some Cases in Which There Is a Strict Right to Compensation.--(a) Employees (i.e., servants, workingmen, artisans, officials, etc.) have a strict right when they are injured by the employer’s non-observance of the contract (e.g., the stipulated salary is not paid; unjust subtractions are made from the salary, as by fines for the inadvertent and infrequent breaking of tools, etc., about which there was no agreement in the contract; labors not contracted for are exacted), or when an unjust contract is imposed on them (e.g., they are induced by force or threats to accept less than a living wage; advantage is taken of their grave necessity to wring from them agreement to such a wage).
(b) Merchants have a strict right when a debt which they cannot collect is certainly owed them, or when they sold below the minimum just price, because forced to this unjustly, or because they made a mistake in charging. They may compensate themselves by diminishing weights or measurements.
(c) One has a right to compensation who has been condemned under a sentence manifestly unjust, because the law is certainly unjust or because the judge clearly gave a wrong decision in a matter of fact (e.g., he erroneously presumed that a debt had been contracted, or that it had not been paid).
1933. Some Cases in Which There Is No Right to Compensation.--(a) Employees have no right to compensation for subtractions from their salary, if they culpably injure the property of their employer, or if they agreed to such subtractions; nor for the smallness of their wage, if they freely accepted it (e.g., if they regarded it as a favor to be employed, and the employer did not really need them), or if it is made up for by presents, board or lodging, opportunity for good tips, etc.; nor for unusual labors, if they hired themselves out for general service (unless they are asked to perform work of an entirely unforeseen kind, such as a very perilous mission), or if they undertook these labors freely without the knowledge or wish (express or tacit) of the employer.
(b) Merchants have no right to compensation for goods sold by them below the minimum just price, if they freely agreed to sell at that price.
1934. Children and Employees and Compensation.--Some special questions arise for consideration in case of parents who employ their own children, and of employers who are forced to underpay on account of the dishonesty of their help.
(a) Children who work for their parents and who are entitled to a salary, by agreement or from the law, have the same rights as other employees, but injustice against them would be less frequent. In this country the father has a right to the services and wages of his unemancipated child, but the child becomes independent of the father when it reaches the age of majority or when the father relinquishes his right.
(b) Employees who are underpaid because the employer is cheated by his help have the right to occult compensation, if they are forced to take less than a living wage (1932); otherwise this is not permissible, unless it be certain that the employer is not unwilling that the honest employees receive more than their pay. In practice, on account of the great peril of injustice, it is advisable that such workers seek better pay through their organizations or else look for employment elsewhere.
1935. Conditions Required by Legal Justice for Occult Compensation.--(a) Occult compensation must not be used if payment can easily be obtained through suit at law or agreement; for the order of law and the public welfare require that one should not have recourse to the extraordinary means of occult compensation if ordinary means will suffice and not cause notable difficulties. But as a rule it seems this obliges only under venial sin, since ordinarily the departure from normal procedure in this matter is not seriously detrimental to public morals or order; and it does not impose a duty of restitution, since he who takes only what belongs to him does not offend against commutative justice. Indeed, if it is certain that other means will be futile (e.g., because one has not sufficient evidence to win or because the decision would he biased) or harmful (e.g., because great dissensions will be aroused, or heavy expenses incurred in litigation), occult compensation is not even venially unlawful.
(b) Occult compensation, according to law, should not be used by a bailee, for he has a lien for his services and proper expenditures in caring for the object bailed, but not for any other debt the bailor may owe him (Bolles, Handy Law Book). This is obligatory at least for the external forum.
1936. Some Conditions Required by Charity for Occult Compensation (see 1165, 1236, 1483).--(a) Charity towards the Debtor.--The creditor should see, when possible, that the debtor suffers no loss by occasion of the compensation. Hence, in order to spare the debtor the evils of a bad conscience in reference to the debt or of a second payment of the debt, the creditor should, if possible, inform the debtor that the debt is cancelled or that payment is not expected.
(b) Charity towards Third Parties.-The creditor should, if possible, prevent any trouble or loss to others that might be occasioned by the compensation, such as suspicion of theft that might fall on servants.
1937. The Lawfulness of Open Compensation.--(a) If one’s property is being stolen or carried away, it is lawful to protect or recover it by force; for this is only just defense.
(b) If one’s property has already been carried away but is still in being and in a safe place, legal justice requires that one seek redress from the courts. But it does not seem a serious fault if one recovers goods by using moderate force, since the property is one’s own and the public manner of seizing it enables the law to take cognizance of the case. American law recognizes with certain restrictions the rights of recaption and of entry whereby a person takes possession without legal process of goods unlawfully taken or withheld from him (Robinson, Elementary Law, Sec.239, 240).
(c) If a debt owed to one is denied by the debtor, it is not lawful to take payment from him by force, since this is against the law and productive of scandal and disturbance, and moreover one is not the owner of the goods which one thus takes by force.
1938. Notanda pro Confessariis.--(a) Ante factum, rarissime consulenda est occulta compensatio, tum quia ut plurimum illicita est (1928) utpote periculo injustitiae, scandali, perturbationis plena, tum quia lex civilis non solet eam ut remedium agnoscere sed potius ut furtum habet. Publice de occulta compensatione non expedit loqui, et praestat ut qui privatim de ea interrogentur, etiam datis conditionibus ad liceitatem necessariis, per modum tolerationis tantum annuant.
(b) Post factum, facilius in favorem utentis compensatione judicari potest, in ordine ad restitutionem, sed prudenter, et quasi evasive loquendum, ne praxis ita agendi ut per se et generaliter licita approbari videatur.
1939. Judicial Injustice.--We pass now from injustices committed by deed to those committed by words, and shall consider first unjust words spoken in courts of law and next unjust words spoken in private or outside of legal processes. Judicial injustice will be treated under the following heads: (a) injustice in judges; (b) injustice in plaintiffs or accusers; (c) injustice in defendants; (d) injustice in witnesses; (e) injustice in lawyers.
1940. The Office of Judge.--Judgment is the proper act of justice (1727) and therefore when exercised under due conditions it is not only lawful, but virtuous. The exercise of public judgment belongs to the judge, who is a person vested with authority to decide litigated questions in civil or criminal cases.
(a) Thus, in the strict sense, a judge is the official who has public authority to preside over tribunals of justice, in which major matters are tried and a formal procedure is followed, and whose function it is to direct the course of the proceedings and to settle questions of fact or of law that arise.
(b) In the wide sense, a judge is any person who has lawful authority to pass an obligatory sentence in criminal or civil matters. The name may be applied, then, to those who preside over a tribunal in which minor or urgent questions are considered and treated summarily (justices of the peace, police magistrates, etc.); to those who do not preside over a tribunal, but who are attorneys at law appointed as officers of a court to pass on some issue of a pending proceeding or suit (referees); to those who act as assistants of the presiding judge, by determining the truth of alleged facts in civil cases, or the innocence or guilt of an accused in criminal cases (trial jurymen); to those who are chosen, by the parties to the dispute or by a court, as substitutes for the ordinary courts provided by law, to hear and settle, without legal formalities, the matter in controversy (arbitrators).
1941. Classes of Courts.--There are various classes of courts and therefore various kinds of judges.
(a) Thus, according to their relative dignity and jurisdiction there are higher and lower courts, courts of the first, second and last instance.
(b) According to the cases they try, courts are either civil (in which redress of private injuries is sought) or criminal (in which the community prosecutes public wrongs).
(c) According to the law which they use courts are ecclesiastical or secular.
(d) According to the form of procedure used and the remedies applied, courts in the United States are divided into courts of common law, courts of equity, probate, admiralty, and military courts.
1942. Jurisdiction.--Authority is necessary in a judge, for judgment is a binding decision that may be executed by force, and this supposes that he who pronounces the judgment is the superior of the person on whom the judgment is passed, Hence, he who acts as judge when he lacks jurisdiction acts invalidly (unless jurisdiction is supplied, as in common error for an ecclesiastical judge, in Canon 209), and offends against the rights of another judge and of the person on whom he passes sentence. Examples would be secular judges acting in ecclesiastical cases or ecclesiastical judges acting in temporal cases.
1943. The Qualifications of a Judge.--(a) Mentally, he must be endowed with knowledge of the law and with prudence, so as to be competent to pronounce correctly on the questions that are brought to him for decision; for, as being the authorized interpreter and custodian of the law, he is bound by quasi-contract with the community and with those who appear before him to be competent for these offices. If a judge realizes that he is incompetent in these ways, he must either resign his office, or make up for his deficiency by study or consultation with those who are more learned than himself. A juryman, being a layman to the law, is not expected to have the mental equipment of a lawyer; but it is his duty to give his attention to the statements, arguments and testimony and to the instructions of the judge.
(b) Morally, the judge must be a lover of justice, whether commutative, distributive or legal; for the proper office of the judge is to apply the law to particular cases and to declare officially the mutual rights and obligations of litigants who are before him. He must not be a respecter of persons, one who is moved for or against a man on account of rank, position or wealth, nor one who is swayed by fear or favor, by popular outcry or personal ambition. Not only legal but also commutative justice obliges him to perform his duties conscientiously; for in taking his office he enters into a quasi-contract with the community to execute his functions faithfully and well, and similarly by trying a case he engages that those before him will receive evenhanded justice. A juror should be a conscientious person who is openminded and free from prejudice for or against those on whom he has to vote.
1944. Conduct of a Judge.--A judge must be above suspicion, since respect for the courts is the very life of the State. But there is good reason to suspect a judge who judges in his own case, or in a case in which he will be naturally inclined to favor one side. Hence the duty of abstaining from certain things.
(a) Thus, he should avoid business, social and political activities that will give ground for belief that he uses his office for the promotion of private interests.
(b) He should not act in a case in which his own advantage or the advantage of his friends might appear to conflict with the duty of strict impartiality, as when he has personal litigation in the court, or when a near relative of his is party in a controversy, or when one of the contestants is his personal or political friend or enemy, etc. Canon 1613 of the Code forbids a church judge to act in the case of a person related by blood or marriage in the direct line or in the first and second degrees of the collateral line, or of a person for whom he is guardian or administrator, or in cases in which he had previously acted as advocate or proxy, or from which he stands to profit or lose.
(c) He should refrain from conduct that would tend to arouse doubts of his impartial attitude, such as incivility to counsel or witnesses, unexplained rulings that have the appearance of arbitrariness, private interviews or dealings with one of the parties before him in ways calculated to influence his action.
1945. Accepting Gifts from Litigants or Others.--May a judge take money or other goods from those whose interests are submitted to him, such as litigants or lawyers in his court or their friends?
(a) If the goods are extorted by threats or pressure or unjust vexation, the judge is guilty of robbery, since he forcibly takes that to which he has no right.
(b) If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. But the law could permit a judge to collect his expenses from both parties if the trial necessitated a personal outlay of money (e.g., for travel or hire of assistants) and there was no public fund to defray these costs.
(c) If the goods are offered as bribes, in order that the judge may be influenced to act against justice, it is clear that grave injustice is done both to the community and to the party who is injured.
(d) If the goods are given as free gifts, with no condition attached, some think they may be lawfully accepted, if there is little probability that they will influence the judge (e.g., because they are small or given after the trial has ended). But others hold, and it seems more correctly, that both natural and positive law forbids this. Natural law forbids because of the danger (“Presents and gifts blind the eyes of judges, and make them dumb in the mouth, so that they cannot correct,” Ecclus., xx. 31), and because of the mistrust and scandal that will result. It is incorrect to suppose that small gifts and gifts offered after sentence would not have influence, for the contending parties would soon come to vie with one another in making gifts, while judges would begin to think about the gratuities that might be looked for at the conclusion of a trial. Canon Law forbids all ecclesiastical judges and all who assist in court to accept any gifts whatever that are offered in connection with the trial (Canon 1624), and the civil law provides severe penalties for bribes offered as gifts.
(e) If goods are given as a mere alms or from civility or hospitality (e.g., food and drink such as is usually offered to a guest or visitor), it does not seem unlawful in itself to accept them, but, since there is a danger of suspicion and scandal, even this should be avoided.
1946. Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways.--(a) If retention of the goods is contrary to the reasonable wishes of the person who gave them, restitution is necessary. Hence, the judge must give back money that was extorted and the payments made by private parties for the exercise of his official duties.
(b) If retention of the goods is contrary to law, restitution is also necessary. Hence, if a judge has taken a bribe, he must give it back, because the agreement is null, and he cannot lawfully keep his part of the compact by acting contrary to justice. The same is true when the law voids the contract whereby he received the goods, or when a court decree obliges him to return a free gift bestowed upon him.
(c) If retention of the goods is not contrary to the will of the giver nor to the law, restitution is not necessary. Hence, if a judge has received a pure gift and no corruption was intended or practised, he sinned in taking it, but the donation was valid and there is no obligation to return it. And even though he has taken a bribe, and in consideration of it has acted against justice, it seems there is no natural obligation to make restitution to the party who gave the bribe, since the latter has received a consideration for his payment, but the judge is held to indemnify the injured party.
1947. Duties of a Judge in the Course of a Trial.--(a) The purpose of the investigation is to discover the truth in the matter before the court, and consequently it is the duty of a judge to give a case the study and attention it deserves.
(b) The method of procedure is intended to secure a fair hearing for both parties and so to expedite business that the litigants will not be harmed by needless delays. The judge should therefore observe the necessary and customary forms of law, while avoiding waste of time and unnecessary interruptions. “It is not the custom of the Romans,” said Festus to the Jews who asked him to condemn Paul, “to condemn any man, before that he who is accused have his accusers present, and have liberty to make his answer, to clear himself of the things laid to his charge” (Acts, xxv. 15).
1948. Duties of a Judge at the Conclusion of a Trial.--(a) The sentence must be just, that is, it must be based on the law and the evidence. Even though a judge does not personally approve of a law, thinking it unwise or unnecessary or over-severe, he should nevertheless enforce it; for he is appointed, not to change or reform, but to apply the law, yet so, however, that the spirit is not sacrificed.
(b) Sentence must not be relaxed as a rule, for otherwise the rights of the State or of the party winning the case will be harmed. But there are times when the public good or some other sufficient reason calls for relaxation, and in such cases judges have the power to refrain from passing sentence or to suspend or respite a sentence already announced. The defeated party should be allowed the opportunity which the law grants him for seeking a reversal of the judgment.
1949. Sentence Passed under a Law Manifestly Unjust.--(a) If the law is manifestly opposed to divine or natural law and sentence under it would command the commission of an act intrinsically evil (e.g., cohabitation of those who are not really married, “mercy killing” of the physically or mentally incapacitated, eugenic sterilization of defectives or criminals), the judge should resign rather than give such a sentence.
(b) If the law is manifestly opposed to divine or natural law and sentence under it would inflict a grievous penalty (e.g., death or long imprisonment) on the transgressor of the law, sentence would be unlawful. But if only a light penalty would be inflicted (e.g., a small fine or short confinement), it seems that sentence might be tolerated; for the person condemned might be considered to yield his rights in such a case for the sake of the public good, which suffers from the loss of conscientious officials. The act of the judge in giving the sentence would be only material cooperation, which is lawful for grave reasons (see 1515 sqq.).
(c) If the law is manifestly opposed to ecclesiastical law, sentence may be given lawfully, if scandal is avoided and the Church yields her right in the case, as is sometimes done in favor of Catholic judges, lest they be deprived of their positions.
1950. May a Catholic Judge Grant a Decree of Divorce?---Apart from scandal or a positive ecclesiastical prohibition:
(a) The judge may grant a divorce to a couple not married validly although they have had a marriage ceremony recognized by civil law. This would occur in the case of Catholics married before a civil magistrate or non-Catholic minister. Also, when the Church has pronounced a marriage invalid, civil divorce may be granted for the sake of civil effects.
(b) Divorce may be granted if the judge knows that one of the parties will invoke the Pauline privilege.
(c) If the judge is morally certain that neither party will attempt remarriage and that the divorce is being sought merely for the sake of civil effects, he may grant the divorce. In the case of Catholics the consent of Church authorities would be required for this procedure.
(d) If the marriage is valid and it is known that the parties will attempt a new marriage, some consider that a decree of divorce is intrinsically evil, since it but applies a law that attempts, contrary to divine right, to dissolve the marriage bond. Others (and this is the more common view today) distinguish and think that the decree of divorce does not concern the religious obligation of the petitioners, but is simply an official declaration that the state regards the civil effects of the marriage as no longer existing. Under certain circumstances, (e. g., loss of office for refusal to accept a divorce case, loss of prestige, antagonism, etc.), such a decree, in itself morally indifferent, may be permitted.
(e) If there is question of partial divorce (i.e., separation from bed and board) of Catholic spouses, a decree is lawful, the Church consenting, for a reason recognized by ecclesiastical authority, such as adultery.
1951. When Evidence Is Contrary to Personal Knowledge of Judge.--(a) In a civil case, the judge should follow the public evidence rather than his private knowledge; for he acts as a public, not as a private, person. Moreover, the State has the power to transfer property from one to another, when the common good requires this, and the common good requires that civil decisions be based on public evidence rather than on private information. Some moralists deny this conclusion on the ground that it is intrinsically wrong to force a person to pay who does not owe, even though the evidence is against him.
(b) In a criminal case, the judge should follow the evidence rather than his own knowledge, if the evidence calls for acquittal of the accused; for it is better for the public welfare that a guilty man escape than that the judicial order be neglected and a rule admitted that might convict the innocent as well as the guilty.
(c) In a criminal case in which the evidence points to guilt while the judge’s private knowledge assures him of the innocence of the accused, the judge must not condemn, if there is any legal way to avoid it. But if the evidence stands and the judge has to pronounce sentence, it is not easy to determine the course that should be followed. According to St. Thomas, the judge should condemn, since he is a public official and must therefore be guided by the allegations and proofs offered during the trial, especially since public order and respect for law depend on the good reputation of the courts. If judges could disregard at will the evidence offered on account of private knowledge they claimed to have, the confidence of the public in the integrity of courts would be shaken, men would take the law into their own hands, and peace and order on which the happiness of the community depend would be at an end. Moreover, the judge is not guilty in sentencing in this case, since he does not intend evil and acts according to the principle of double effect (see 103 sqq.). According to a second opinion attributed to St. Bonaventure, the judge should acquit, since it is intrinsically wrong to condemn to death a person about whose innocence one is certain. According to a third opinion, which St. Alphonsus considers as probable, the judge should condemn in minor criminal cases in which only pecuniary penalties are imposed (for the State has the right to exercise eminent domain in order to safeguard an important public good like that of respect for the law and the courts); but he should acquit in major cases in which personal punishments are inflicted, for society has no right to deprive an innocent person of life or liberty.
1952. When the Judge Is the Unjust Cause of Damaging Evidence.--In some cases the judge may be the unjust cause of the evidence that convicts an innocent man, as when the judge has committed a crime and thrown suspicion on the accused (Dan, xiii), or when the judge has moved others to testify falsely against a man he knows to be innocent.
(a) One opinion holds that the judge would be obliged to condemn, on account of the reasons just given for the opinion of St. Thomas, if the judge were unable to overcome the evidence. But those who hold this add that this is purely speculative, for in a concrete case there would be many ways by which the judge could extricate both himself and the accused from the difficulty.
(b) Another opinion says that in no case could the judge of the present hypothesis condemn. Those who favor this opinion declare that St. Thomas is to be understood only of the case in which the judge is not the cause of the unjust accusation; for one who has culpably placed a cause of damage is bound to remove that cause before it acts, if this is possible, and in the present instance it is possible for the judge, if all other things have failed, to free the innocent person by testifying for him, or even by acknowledging his own guilt.
1953. Practical Conclusions about the Three Controverted Opinions Given Above in 1951.--(a) In a case tried according to Canon Law, it seems that the opinion of St. Thomas should be followed, since Canon 1869, n. 2, declares that the ecclesiastical judge must not give sentence unless he is certain about the matter of the sentence, and that his certainty must be derived from the acts and proofs of the trial.
(b) In a case tried according to civil law, it seems that the whole controversy is today very often of little practical importance; for court decisions are now frequently left to jurymen, and these men must either have no private certainty before they are admitted to their office (as is the case in the United States), or they have the obligation of using private knowledge in casting their vote and of communicating it to fellow-jurors during the deliberations (as is the case in some other countries). Hence, the moral question whether it is lawful to decide according to private knowledge against the public evidence largely disappears. But when a case of the kind now considered does occur, the position of the civil law also agrees, it seems, with that of St. Thomas: “Neither the judge nor the jury can consider a private fact of which they have a merely personal knowledge, however important may be its bearing on the issue, unless it has been brought to their attention by evidence properly produced in open court” (Robinson, Elementary Law, Sec. 334). But the lightest penalty allowed by the law should be imposed in such a case. If a judge were privately certain that a jury verdict was unjust, he could offer his own testimony or appeal to the pardoning power.
1954. The principle that a judge must be guided only by his public knowledge applies also to other officials who are required to follow the results of a public investigation, but not to those who are required to act according to their best knowledge, whether public or private.
(a) Thus, public knowledge must be the guide of those who are ministers of a court and on whom it falls to execute its decrees; for they are the instruments and subjects of the president of the court. If they have private information of a material and relevant kind, they should disclose it as witnesses.
(b) Private knowledge that is opposed to and more reliable than public knowledge must be the guide of those who are supposed to act according to the most trustworthy knowledge they have. Hence, a superior who has the power to make appointments to office should disregard the votes of his advisors, if he can prove that they are wrong in their opinions about a nominee for office. He may confirm or annul their choice according to his honest conscience.
1955. When Guilt Is Doubtful in Criminal Cases.--In a criminal case or a case in which punishment is inflicted, if the guilt of the accused is doubtful, the sentence should be for acquittal; for no one should be condemned unless his guilt is morally certain (see 1728 sqq.).
(a) Thus, according to Canon Law, an ecclesiastical judge who is not certain that sentence for the plaintiff will be just, must declare that the latter has not established his case and must dismiss the defendant, though exception is made for cases that have the favor of law (such as marriage, liberty, testaments, Canon 1869, n. 4). Canon Law places the burden of proof on him who makes an assertion, and it rules that the defendant is to be acquitted if the plaintiff or accuser fails to prove, even though the person on trial says nothing (Canon 1748).
(b) According to the civil law the rules on evidence also favor the accused in cases of doubt. He must not be held guilty unless the State has proved affirmatively and beyond reasonable doubt every material allegation in the indictment. In capital cases the evidence of guilt must be equivalent in weight and conclusiveness to the direct testimony of two competent and reliable witnesses. A reasonable doubt in the mind of a juryman is one for which he can give himself an adequate and satisfactory reason (Robinson, Elementary Law, Sec. 608).
1956. Doubt in Civil Cases.--In civil cases, if it is uncertain after the investigation for whom the decision should be given, the following rules seem to be just:
(a) if the parties are unequal in claim, the decision should be for the one whose claim is more weighty; for the judge is appointed by society to investigate the truth of a controversy and to decide according to the merits of the case. Thus, decision should be for the party Whose arguments are of at least equal strength--but who has legitimate possession (for “possession is nine points in law”), or whose case enjoys the favor of the law (e.g., in Canon Law, the cases of widows, wards, minors), or for the party whose case is stronger and more probable. Innocent XI condemned the proposition that a judge may decide for the side whose arguments are less probable (Denzinger, n. 1152);
(b) if the parties are equal in their claims, some think that property in dispute should be equally divided between the contestants, others that the parties should be persuaded to compromise, or, if this is impossible, that the decision may be given for either one of them. But if positive law regulates the manner of proceeding in such a case, its provisions should be followed. Thus, in Canon Law, if a judge is in doubt as to which one of two competitors has possession, he may grant it to both of them indivisibly, or he may command them to deposit it with a sequester, pending the settlement of the dispute (Canon 1697).
1957. What should be decided when the defendant has possession with probable title and the plaintiff has more probable title?--(a) If the possession is not certain, or not certainly legitimate, decision should be for the plaintiff, for uncertain possession does not create any presumption of right and hence the more probable case prevails.
(b) If the possession is certainly legitimate, the common opinion is that decision should be for the defendant; for certain possession is not overcome by more probable, but only by certain arguments for the plaintiff. Some authors, however, believe that the judge should decide for the plaintiff, since possession prevails only when the arguments are of equal strength on both sides; or at least that he could decide for him, since it is probable that the plaintiff by presenting a more convincing case has sufficiently established his right to eject the defendant.
1958. The Standard by Which a Judge Should Weigh the Evidence.--(a) When the proving force of an argument is settled by the law itself, the legal rule should be followed. Thus, in Canon Law certain kinds of proofs are expressly declared to be demonstrative (e.g., a public instrument not contested, Canon 1816), while other proofs are held to be insufficient or only of partial value (e.g., certain kinds of testimony, Canon 1756). Likewise in civil law public documents are prima facie evidence, oral interpretation of a written document which contradicts its language is not admitted, etc.
(b) When the proving force of an argument is left to the discretion of the judge, he must follow his conscience, that is, he must sincerely and impartially decide to the best of his ability the value of the argument, whether it is decisive, or likely, or Weak. Thus, in judging circumstantial evidence a juryman must use his own common sense and intelligence in determining whether the premises are doubtful or the inference illogical; in estimating testimony a judge must bear in mind the quality of the witnesses and the character of their testimony.
1959. The Moral Obligation of a Judicial Sentence that Is Certainly Just.--(a) It is binding in conscience; for it is merely the application of law to a particular case, and law obliges (see 377). (b) It obliges in virtue of legal justice when the case is only penal, and hence he who is fined by court is held as a duty of obedience to pay the fine; it obliges in virtue of commutative justice when the case is about a strict right, and hence if the court requires an heir to pay a legacy, the latter must make restitution for neglect of this duty (see 1728).
1960. The Moral Obligation of a Judicial Sentence that Is Certainly Unjust.--(a) If the sentence is unjust because it is the application of an unjust law, it produces no obligation in those cases in which the judge cannot lawfully apply the law (see 1949); for an unjust law does not oblige in conscience per se, but only per accidens (see 377, 461). (b) If the sentence is unjust because it is not based on the law or the evidence, or because the trial was not conducted fairly, it produces no obligation per se, but there may be an obligation per accidens, as when scandal or great public disturbance will otherwise result. Hence, one who through plain injustice is deprived of an inheritance has the right to occult compensation (see 1928), while the other party is bound to restitution of the inheritance (unless he is in good faith or has prescribed) and also to damages, if he went to law in bad faith.
1961. The Moral Obligation of a Judicial Sentence in Case of Doubt.--(a) If the doubt is about fact or law, not about the right of the judge to give sentence (see 1955 sqq.), the sentence may be safely followed; for it is the office of the judge to settle doubtful matters, and to promote the common welfare by ending litigation. Thus, in doubtful criminal cases the judge sometimes acquits a guilty man, and in doubtful civil cases he sometimes awards property to one who has no right to it; but these sentences are not unjust, since they are based on rules which long experience has shown to be necessary for the public welfare. (b) If the doubt is about the justice of the sentence, there is an obligation of conscience to observe the judgment, since the presumption favors the judge. Were this not so, the authority of tribunals of justice would be at an end, for almost everyone who loses a case thinks that he has been treated unjustly. But one may enter an appeal, where this is allowed by law.
1962. When a Judge Is Bound to Restitution.--A judge is bound to restitution when he causes unjust damage to the community or to litigants (see 1762 sqq.), and hence he must either recall his unjust act, or repair to the best of his ability the harm done. But the conditions for unjust damage must be verified (see 1763).
(a) Thus, the judge’s act must be objectively unjust, that is, in violation of a strict right under commutative justice. This happens when he conducts the trial unjustly (e.g., when he neglects the essential procedure, tries without an accuser, and the like) or when he passes unjust sentence (e.g., condemns without proof of fact or crime, or in spite of evidence for innocence, votes for acquittal when there is no reasonable doubt of guilt, imposes penalties that are insufficient or excessively severe, or awards property to one who to his knowledge has no right to it).
(b) The judge’s act must be efficaciously unjust, that is, it must be the real cause of the loss sustained by the other person. Hence, there is no duty of restitution if loss does not result (e.g., if the party who is in the right wins in spite of unfairness on the part of the judge), or if loss cannot be traced to the judge’s action (e.g., when a judge is not entirely impartial in his charge to the jury, but his words do not influence them, as they would have given an unfair verdict anyway).
(c) The judge’s act must be subjectively unjust, that is, the judge must be seriously responsible for the damage on account of his culpable ignorance, negligence, or malice. Even though he has made mistakes through excusable inadvertence or error, he becomes seriously responsible for damage, if, foreseeing it, he does not do what is in his power to avert it (see 1769).
1963. When a Judge Is Not Bound to Restitution. A judge is not bound to restitution, however, for violations of virtues other than commutative justice.
(a) Thus, charity is offended, but not justice, if the judge has personal hatred against a person before him, but does not permit this to influence his conduct or decisions.
(b) Legal, but not commutative, justice is offended, if the judge is negligent about exemplary damages, provided the common good does not suffer; for there does not seem to be any strict right to the fine before sentence has been given. This is disputed, however, by some moralists, who hold that the judge is under contract with the community in this matter, and hence that he offends commutative justice, if he is habitually and to notable amounts indulgent about fines.
1964. Kinds of Accusation.--From injustice committed by judges we pass now to that committed by accusers. It should be noted that there are two kinds of accusation: (a) extrajudicial accusation is that which is brought before a superior in order that he may correct or restrain, without recourse to judicial process, a subject who is delinquent. This is evangelical or canonical correction, which was discussed in 1293, 1289; (b) judicial accusation, with which we are now concerned, is that which is brought before a judge, in order that redress may be obtained through judicial process against an accused person.
1965. Judicial accusation is also made in two ways. (a) The accuser sometimes does not act as one of the two antagonistic parties, and does not assume the burden of proving his accusation. He makes an official complaint or denunciation, and then drops out of the case, leaving it to the magistrate or other officer to examine whether a process should be instituted and the informer summoned as a witness. (b) The accuser is sometimes one of the two antagonistic parties during the process, and he then assumes the burden of proving his accusation. In Canon Law there are two kinds of processual accusers, the actor in civil cases and the accuser (an official known as the promotor justitiae) in criminal cases. In American law, the accuser in cases of private wrong is known as the plaintiff; in cases of public wrong he is the District Attorney or public prosecutor.
1966. The Duty of Judicial Accusation or Denunciation.--(a) If a wrong has been committed which is directly prejudicial to the common welfare (e.g., treason, counterfeiting, banditry), there is an obligation to make accusation, for each member of society is held to come to its assistance when its peace and order are endangered, and this is done by cooperating with the tribunals of justice. Duty to one’s family also requires that one prosecute, when this is necessary in order to protect its members against some great evil.
(b) If a wrong has been committed which is not immediately prejudicial to the common welfare, there is not per se an obligation of accusation; for the purpose of accusation is to obtain punishment or the correction of a wrong--an end that should not be waived when the common good is at stake, but which may be waived when private interests are concerned. But per accidens, or by reason of circumstances, there is often an obligation of denouncing or accusing private wrongs.
1967. Cases in Which There Is a Duty of Making Complaint about Private Wrongs.--(a) Such complaint is obligatory in virtue of commutative justice, when by reason of his office, oath, or function a person is under contract to accuse violators of the law; and hence serious negligence in such a person entails the duty of restitution for any damage caused through his fault. Examples here would be a watchman who fails to report thefts, a man serving on the grand jury who does not vote for an indictment when he should, a prosecutor who is careless. The obligation is grave when the danger or injury to the common good is serious.
(b) This complaint is obligatory in virtue of legal justice, when there is a positive precept of the law which requires that accusation be made. The civil law rarely obliges to this as a duty of conscience, but there are a number of cases in Canon Law in which it is a duty of conscience to denounce (e.g., when there has been a sollicitatio ad turpia).
(c) This complaint is obligatory in virtue of charity, when without serious inconvenience one can thereby save a neighbor from a grave evil, such as unjust sentence of death or infamy: “Deliver them that are led to death” (Prov., xxiv. 11); “Rescue the poor, and deliver the needy out of the hand of the sinner” (Psalm lxxxi. 4).
1968. Is a Malefactor Bound to Accuse Himself?--(a) As a rule, he is not bound to confess guilt, either explicitly or implicitly, for this is too much opposed to natural inclination, and hence is not demanded by law (see 552). This seems to be true even though an accused has unjustly declared himself innocent, and has not been questioned further or has been acquitted; for legal justice obliges the accused to give a true answer only when he is being questioned (see 1978). In Canon Law those who would sustain damage from their own testimony are not bound to take the witness stand, and hence persons who reasonably fear that their evidence will subject themselves or their relatives to infamy, vexation or other disadvantage cannot be forced to testify (Canon 1755, n. 2). In civil law one may not be convicted on one’s own testimony alone, unless the confession was voluntary, that is, made neither under fear, nor with the hope of favor, nor as the result of any species of coercion (Robinson, Elementary Law, Sec.608).
(b) In exceptional cases, one would be bound to accuse oneself, namely, if there were a grave and urgent necessity of the community which outweighed the loss that would follow from self-accusation (see 1576, 1577). Self-accusation is also a duty when one is the gravely culpable cause of the punishment of an innocent person, if there is no other lawful way of freeing him, and the self-accusation will not bring on one a much more serious evil than that which the innocent person suffers.
1969. Ethical Conditions for Lawful Accusation or Denunciation.--(a) There must be no injury to the common welfare. Hence, if the order and peace of society would be disturbed by the accusation of a crime which was private and from which no further damage could be anticipated, it would be better to leave this occult crime unpunished rather than bring on greater evils to the public.
(b) There must be no injury to private welfare. Hence, if the accuser does not believe that his accusation is just, or if he knows that there is no suitable evidence for his charges, or if he is excluded by law from making an accusation (e.g., when his knowledge has been derived from the confessional or in other confidential ways), it would be unjust to accuse; if the offender offers to make full satisfaction for a private wrong and has already amended, or was not accustomed to commit such wrongs, or if the loss he will suffer from the accusation will be far in excess of the wrong he has done, it would be uncharitable to make formal accusation (see 1200, 1201).
1970. Persons Who May Not Act as Accusers.--Generally speaking, the following persons are naturally incapable of acting as accusers: (a) those who are guilty of greater misdeeds or who are infamous, since it is unbecoming for them to accuse; (b) those who are enemies of the other party, since they are swayed by spite or revengefulness; (c) those who are near relatives of the other party, since it is unnatural for them to attack their own flesh and blood.
1971. In Whose Favor May One Denounce a Private Wrong?--(a) One may denounce it in one’s own favor, for one is not obliged to sacrifice one’s right to redress, and hence accusation is permissible (see 1199). Those who are considered as one person with the injured party may accuse for him, such as parents, husband, wife, children.
(b) One may denounce a private wrong in favor of an innocent third party, as when an innocent person is being harassed by oppression, even though one can defend him only with notable inconvenience to oneself (see 1967).
(c) One may denounce a private wrong in favor of the guilty party himself, as when he is guilty of offenses that are harmful only to himself (e.g., drunkenness, impurities), if he has a bad reputation already or his delinquencies are manifest.
1972. Accusation and Fraternal Correction.--Whether obligatory or permissible accusation should be preceded by a fraternal correction is controverted among moralists. But perhaps the two opposite views may be reconciled as follows:
(a) per se, that is, in view of the purpose of accusation (punishment, vindication of justice, example), there is no duty of previous fraternal admonition, since the purpose of the admonition is the amendment of the wrongdoer (see above, 1289, 1293);
(b) per accidens, that is, in view of the circumstance that there may be hope of correcting the wrongdoer and of averting evil, and that punishment may not be very necessary to the public welfare, previous fraternal correction for secret delinquencies may sometimes be a duty of charity.
1973. Unjust Accusation.--Injustice in accusation is committed in the following ways: (a) injury is done the accused when a crime is falsely imputed to him through malice (calumny), or through a too great readiness to believe rumors (rashness); (b) injury is done the community if one whose duty it is to conduct a prosecution makes only a sham attack or colludes with the defense (prevarication), or if without good reason he abandons the prosecution (tergiversation).
1974. Cessation of Duty of Accusation.--The duty of accusation ceases: (a) when accusation is found to be unjust, for example, when the prosecutor discovers the accused is really innocent, etc. (see 1969); (b) when accusation is found to be useless, for example, when one discovers that the authorities are already aware of the fact about which one intended to give information, or when one perceives that the charge cannot be substantiated.
1975. The Defendant.--The party who is required to make answer to the charges of the plaintiff or prosecutor is known as the defendant or the accused. We shall now speak of the ways in which he may be guilty of injustice, and shall consider the following cases: (a) the defendant in civil cases; (b) the accused in criminal cases who is innocent; (c) the accused in criminal cases who is guilty.
1976. The Duties of the Defendant in Civil Cases.--(a) Before Sentence.--If the cause of the plaintiff is clearly just, the defendant as a matter of justice should recognize the claim and withdraw from the case. But a defendant may take exception to arguments offered by the plaintiff which, though actually valid, are not juridically made.
(b) After Sentence.--If the cause of the plaintiff is clearly just but loses in court, the defendant is obliged in conscience to pay the claim, even though the plaintiff does not appeal the case; he is also obliged in conscience to indemnify the plaintiff for the expenses of litigation, if the latter lost the case on account of unjust means employed by the defendant.
1977. The Duties of One Who Has Been Arrested on a Criminal Charge.--(a) If the accused person is innocent, he may take to flight or even offer positive resistance, provided he does no injury to those who attack him, and public scandal or disorder does not result from the resistance. This is according to natural law, which permits one to use self-defense against unjust aggression; but since the positive law requires the accused to submit to arrest that is not manifestly unlawful and empowers the officers to employ force against those who resist, it seems that generally the accused should permit himself to be taken under protest, if he cannot escape.
(b) If the accused person is guilty, he may take to flight, since he has not yet been sentenced as guilty nor officially deprived of his liberty; but he may not offer resistance to those who are sent to apprehend him, since their aggression against him is not unjust. The accused person, if not yet convicted, may even use indifferent means to escape from prison, such as sawing his way out or eluding the vigilance of the guards; but he may not employ sinful means, such as bribery of officials.
1978. Duty of the Accused to Plead Guilty, if Questioned by the Judge.--(a) If the accused is innocent, he may not plead guilty, as is clear. If to escape most grave evils he did plead guilty, he would be guilty of lying (if under oath, of perjury), but not of self-defamation; for, as the owner of his reputation, he has the right to sacrifice it in order to escape greater evils. Neither would he be guilty of suicide, according to some, if the death penalty were the consequence of the confession; for his purpose would be to avoid what he dreaded more than death.
(b) If the accused is guilty, he must reply truthfully, if the judge has the right to ask the question; for if the judge has the right to question, the accused has the obligation to answer, even though unpleasant things will befall him in consequence.
(c) If the accused is guilty, but the judge has no right to ask about his guilt (that is, if the judge does not question juridically or according to law, or if he questions from a false presumption of guilt), or if the accusation cannot be proved juridically, the accused is not obliged to answer. He may keep silence or evade the truth, but it is not lawful to lie.
1979. Legal Right of a Judge to Question a Prisoner about His Guilt.--(a) According to older legislation a judge had this right, and could enforce it by torture, when the common good was involved and the guilt of the prisoner was likely on account of infamy or manifest indications of crime or half-proof of guilt. In itself, this practice was not opposed to natural law and had some good results; but it was open also to many abuses. Some moralists teach that a judge cannot impose a grave obligation of confessing guilt in capital or similar cases, if the accused has otherwise a hope of escape and no great evil is likely to befall the common interests by reason of an acquittal. They argue that human law cannot oblige so rigorously as a rule.
(b) According to modern civil legislation the right of exacting a confession is denied to a judge. Thus, according to American law no person may be compelled “in any criminal case to be a witness against himself” (Constitution, Article V). In American law the plea of not guilty is not a lie, even though the accused knows that he is guilty, for, as everyone understands, the plea means either that one is innocent or that one is using the privilege of not confessing. Neither is it considered a lie to say that an unprovable charge is a calumny, for an accusation that cannot be proved juridically is juridically a calumny.
(c) The general law of the Church rules for ecclesiastical processes that, when the judge questions the parties-litigant, they are obliged to answer and to confess the truth, unless the question is not legitimate (e.g., questions about irrelevant or privileged matters, or questions made in a captious or leading manner), or the answer would incriminate the parties themselves (Canon 1743). Neither is an ecclesiastical judge permitted to put an accused in a criminal case under oath to tell the truth (Canon 1744). An instruction of the Holy Office of 1866 required that the guilty party in a case of solicitation should confess, but the instruction was directive rather than preceptive. Particular law (e.g., the statutes of a Religious Institute) might perhaps prescribe confession by an accused, but most Constitutions of Religious Institutes bind only under penalty, and, as for the rest, an ecclesiastical superior could at most advise, but could not impose, confession by an accused.
1980. Rights and Duties of Accused in Conducting His Own Defense.--(a) In Reference to Judge or Attorneys.--The accused, if questioned, may not conceal the truth by lies, ambiguities, or half-truths, since these are evil means, nor may he use evasion if he is lawfully interrogated. But if the question put to him is unlawful, he may evade an answer. It is commonly held that lies told in giving testimony or evidence are not necessarily mortal sins, as there may be no perjury committed or grave harm done another by reason of them (e.g., when an innocent man “doctors” a paper and thereby without harming anyone escapes from an unjust sentence).
(b) In Reference to the Opponent or His Witnesses.--The accused has the right to disclose secret but real crimes of the accusers, when this is an exercise of his legal right of taking exception to the witnesses as incompetent, or of his natural right of clearing himself of the charge against him. It makes no difference whether the evidence of the accusers is true or false, whether given according to the order of law or not. But he must not go beyond the limits of moderate self-defense (see 1826). Innocent XI condemned the proposition that it is probable that calumny may be used without mortal sin as a defense of one’s justice or honor (Denzinger, n. 1194).
1981. If the accused objects secret crimes of the opposition, he must beware of injustice or uncharitableness. (a) Thus, it is unjust to disclose crimes that cannot be proved, or that are irrelevant (e.g., it may be irrelevant to prove that the person who testifies that the accused committed murder is himself a fornicator, but it would be relevant to show that this witness is a liar, or dishonest, or an enemy of the accused), or that need not be revealed (e.g., if the witness’s testimony can be overcome by showing that the witness is weak-minded or under obligations to the opposition, it is not necessary to defame him).
(b) It is uncharitable to disclose a crime, if the witness will suffer far more from this defamation than the accused would suffer from the testimony. If, however, the witnesses are giving false evidence of their own accord, they take the risk of revelations by the defense.
1982. Rights and Duties of an Accused Who Has Been Found Guilty.--(a) Appeals.--It is lawful to appeal from a sentence that is unjust (whether because of the innocence of the accused, or of the illegality of the process), because appeal is a means of self-defense granted to the innocent. It is not lawful to appeal from a sentence that is certainly just, merely in order to cause delay or to defeat an adversary; but one may make an appeal when there are just reasons (e.g., in criminal cases the hope of getting an easier sentence or of prolonging life, in civil cases the discovery of new proofs, or of probable arguments against the sentence given). But one who has pledged his word not to appeal from the decision of an arbitrator should abide by his promise, and there is no appeal from the final decision of the highest court, which in the Church is the Roman Pontiff (Canon 1880), and in the State the Supreme Court.
(b) Escape from Prison.--If the sentence was unjust, it is lawful to escape, unless the means employed are intrinsically evil (e.g., killing of guards), or the results will be more harmful than continuance in prison (e.g., the overthrow of public order, the too great risk of the attempt to escape). If the sentence was just, there are various opinions on the lawfulness of flight. Some think it is never lawful, because a just sentence is a precept of authority and should be obeyed; others think that flight is lawful in grave cases (e.g., when the prisoner has been sentenced to death or to life imprisonment, or when the conditions of prison life are unbearable, because human law cannot impose as a normal regulation what is too difficult for human nature); still others think that flight is always lawful, because the court sentence is that the prisoner be forcibly confined, not that he remain in prison voluntarily. But one is not necessarily bound to escape (see 1857).
(c) Resistance to Sentence.--If the sentence is unjust, resistance is not unlawful per se, because one has the right of self-defense against unjust aggression (Ezech. xxii. 27). Hence, if one were condemned to execute oneself (e.g., by taking poison), the common opinion is that the sentence would be unjust (see 1856), and therefore not obligatory. If the sentence is just, even though it be a capital sentence, resistance is not lawful, for the judge who duly pronounces sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).
1983. Jail-Breaking and Restitution.--If one does not sin by jail-breaking, is one bound to restitution for the damages connected with the escape?
(a) If the damages are not caused by, but only follow accidentally on the flight (e.g., escape of other prisoners, dismissal of guards), there is no obligation to make restitution for them; for the flight would not be the efficacious or the unjust cause of such damages.
(b) If the damages result from the flight as from their efficacious and unjust cause, there is an obligation of restitution (see 1763), as when a prisoner, in order to escape, does needless damage, or damage out of all proportion to the evil from which he seeks to escape. But ordinary property damage, such as a hole cut in a wall, does not seem unjust, if there is no other way to get out.
1984. Reliability of Witnesses and Testimony.--A witness in court is a person who declares during a judicial proceeding that he knows some statement, deed or omission in reference to the matters at issue. The testimony of witnesses has proving force only in so far as these persons appear to have knowledge of the matters on which they testify and appear to be truthful. Hence, certain kinds of witnesses and certain kinds of testimony are unreliable.
(a) Thus, a witness is unreliable either through his own fault (e.g., if he is regarded in his community as below the standard in truthfulness, or has the reputation of being a calumniator) or without his own fault (e.g., if his powers of observation or his memory are subnormal, or he is devoted or hostile to or dependent on one of the contending parties). It is a duty, indeed, to presume good of a person in whom the opposite does not appear, if he is the only one whose interests are concerned; but when there is danger to a third party, one must be on one’s guard (see 1744). Hence, St. John admonishes not to believe every spirit (I John, iv. 1).
(b) Testimony is unreliable because of the number of the witnesses (e.g., one witness is often legally insufficient to prove, especially in graver matters), or the quality of their evidence (e.g., because in substantial points a witness contradicts himself or is contradicted by his co-witnesses, or because there are signs of collusion or conspiracy), or the counter-evidence of the opposition.
1985. Obligation of Freely Appearing as a Witness.--(a) There is an obligation of commutative justice to offer testimony, if one is under contract to do this, as when one is hired as a detective or agent to gather evidence against lawbreakers.
(b) There is an obligation of legal justice to testify, even at the cost of serious inconvenience, if the testimony is necessary for averting a serious evil that threatens the common welfare. A person who knows of a plot against the peace of the State should bring this to the notice of the authorities, even at the risk of his life. But a person who knows that a crime has been committed, is not bound to give witness about it, if the escape of its author will not be a serious detriment to public or private welfare (e.g., if one knows that an apparent case of suicide was really a homicide committed by accident).
(c) There is an obligation of charity to testify (but not at the cost of serious inconvenience), if the testimony is necessary for averting a serious evil that threatens a private person. A person who can prove that the evidence which is about to hang an innocent man is false should testify for the accused, unless the testimony will bring an equal evil upon himself.
1986. Obligation of Appearing under Lawful Citation to Give Testimony.--(a) He who avoids citation (e.g., by flight into another jurisdiction, by concealment of his person when the subpoena is being served), more probably does not violate legal justice by this act, since a precept that has not been received cannot be violated. (b) He who disregards citation offends legal justice, since the summons to appear has a claim on his obedience. But it does not seem that he violates commutative justice, unless the party for whom he could testify has a strict right to the testimony.
1987. Obligation of Witness to Answer Truthfully.--A witness who is questioned legitimately (i.e., by one who has the authority to question him) and juridically (i.e., according to the form and order prescribed in law) is obliged per se to answer according to the truth as he knows it, for one is bound to obey a superior when he gives a lawful command. But there are exceptions to this rule per accidens, that is, when a higher law exempts one from the necessity of divulging a certain matter, or when the question asked refers only to what one knows juridically. In all these cases the witness may answer that he does not know, for he has no knowledge that he may, or should, or must use.
(a) Thus, the natural law permits reticence when a revelation would work notable damage to the witness or those closely related to him, for the command of a superior does not oblige under such great inconvenience. This supposes, of course, that the revelation is not required in order to prevent a great harm to the commonwealth or a far greater harm to a private person than that which threatens the witness. A person who knows that he will be assassinated if he testifies against a powerful criminal is not ordinarily bound to make the sacrifice. Canon and civil law excuse witnesses from making disclosures that would expose them to prosecution or penalties (see Canon 1755, Sec. 2, n. 2).
(b) The natural law commands reticence when a revelation would be injurious to divine, public or private rights.
1988. Matters Regarding Which a Witness Should Not Testify.--There are certain cases in which natural law forbids a witness to make known a fact about which he is questioned.
(a) A witness may never testify to matters known to him only from Sacramental Confession, for to break the seal of confession is an injury to the rights of God. In an ecclesiastical process a priest may not testify from Sacramental knowledge, even though he has the penitent’s permission (Canon 1757, Sec. 3, n. 2).
(b) A witness may not testify as a rule to matters that are known to him only in a confidential way, such as the communications between lawyer and client, physician and patient; for the public interest as well as the interest of individuals requires that generally there be security against defamation for those who give their confidence to others, especially if they are in great need of professional assistance. Privileged communications are recognized both in Canon Law (Canon 1755, Sec. 2) and in civil law. But knowledge obtained as a secret may be used when this is necessary in order to avert a great evil that threatens the public welfare or the welfare of an innocent person, whether this person be the giver of the secret, or a third party, or oneself; for to oblige to secrecy in these cases would be to throw protection around crime. Thus, a lawyer may make disclosures of confidential knowledge, if this is necessary in order to defend himself against the false accusations of a client, or to prevent a crime which the client intends to commit.
(c) A witness may not testify to matters about which he has unjust knowledge (e.g., by wire-tapping, by unjust coercion, by intoxicating another person, by reading private papers without permission), for, as the knowledge was unjustly acquired, it cannot be justly used (see 2420).
1989. There are also certain cases in which a question refers only to what the witness knows juridically, or in which he is called upon to answer according to the mind of the questioner.
(a) If the witness is asked to state what he knows about a case, he is not obliged to mention what he merely thinks or what he is uncertain about; and if he is asked what he has heard, he is not obliged to state what was told him by persons of poor authority.
(b) If he is asked whether the accused was to his knowledge guilty of a crime, he is not obliged to mention an act of the accused that was unlawful but done in good faith. But in a civil case, in which inquiry is made about juridical faults, the witness should testify even to the existence of delinquencies in which there was no element of theological fault.
(c) If he is the only one who has knowledge of a delinquency and it will be certainly useless for him to testify about the matter without corroboratory evidence, it seems that he may keep silence about what he knows. But if the testimony of one witness is sufficient according to law, then the witness should speak of the facts known to him.
1990. Sinfulness of False Testimony.--When we speak of false testimony, we mean testimony which the witness knows to be false.
(a) By reason of his false oath, the witness is guilty of perjury, which is a grave sin against the virtue of religion.
(b) By reason of the injury done by the testimony, the witness is guilty of injustice, which from its nature is a grave sin. In the Decalogue (Exod., xx. 16) false testimony is forbidden among the sins against justice: “Thou shalt not bear false testimony against thy neighbor.” Legal justice is offended, since false testimony is an act of disobedience to lawful authority, and usually commutative justice is also violated, since by false testimony one of the litigants as a rule suffers loss.
(c) By reason of the deliberate falsehood, the witness is guilty of lying, which, however, is not always a grave sin.
1991. It may happen then, though rarely, that false testimony is only a venial sin, for example, when the witness is not under oath and he gives false testimony in a matter of small importance, or without full deliberation on what he is saying, or when he forges or corrupts a document to supply for another that has been lost and from which his certain right could be proved.
1992. Obligation of Witness to Make Restitution.--The obligations of restitution by a witness on account of failure to perform his duties properly are as follows:
(a) if the witness has not sinned against commutative justice, there is no obligation of restitution (see 1753). Hence, if he has evaded testimony to which he was bound in legal justice or charity alone, he is guilty of sin, but he is not held to restitution. Similarly, if he has given false testimony and thereby deprived the State of a fine under a penal law, or saved a guilty party from punishment, he has sinned against legal justice, but is not obliged to make good the fine or pay damages;
(b) if the witness has sinned against commutative justice, materially but not formally, he is not the gravely guilty cause of damage, and hence is not obliged from justice (but there may be an obligation from charity) to make restitution (see 1764). But if he perceives that his testimony was materially or venially unjust and will cause serious damage, he is obliged to recall his testimony, or in some other suitable way prevent the damage, if this is possible (see 1769);
(c) if the witness has sinned against commutative justice formally, he is the efficacious and culpable cause of the damage that results, and hence is bound to restitution, unless there is an excusing cause (see 1797 sqq.). Thus, if false testimony, or testimony about matters which the witness had no right to disclose, has led to the death sentence for an innocent man, the witness who gave that testimony must retract, even at the risk of his own life; for in equal danger the rights of the innocent have the preference. Again, if Titus by false testimony has saved Balbus from paying damages for injury done to public property, Titus must make restitution for the loss caused, if Balbus will not make reparation.
1993. Is a witness guilty against commutative justice when he unlawfully conceals facts and damage results thereby to another person? (a) If by concealment is meant the destruction of evidence (e.g., the burning of a will or letter or forging), the witness or other person responsible is guilty of a positive act of commutative injustice and is bound to restitution. (b) If by concealment is meant silence about material facts that the witness is lawfully called on to disclose, distinction has to be made between the witness who is not obliged from contract to give evidence and the witness who is so bound. The former witness is a negative cooperator and sins against legal justice and charity; the latter witness is a negative cooperator and sins against commutative justice (see 1780).
1994. Payment of Witnesses.--Is a witness permitted to accept pay for giving true and lawful testimony?
(a) For the testimony itself a witness may not accept pay, for he is bound to tell the truth freely, just as the judge is bound to dispense justice freely.
(b) For the expenses he incurs and the time he loses by reason of his assistance in court, he may accept pay; since, as St. Paul says, he who does a service for another is not required to meet the expenses of the service (I Cor., ix. 7). Both Canon and civil law make allowances for suitable compensation to be granted to witnesses (see Canons 1787, 1788). But if a witness receives compensation in excess of what is allowed by law, the court and the adverse party have a right to be informed of this.
1995. Lawyers.--Lawyer is the general term used to designate all those who are versed in the law and who give assistance to others in legal ways during lawsuits or apart from them.
(a) Thus, apart from lawsuits a lawyer may act as legal adviser, giving instruction, information or direction on rights and duties under the law.
(b) During a lawsuit he advises about the case (jurisconsult) or carries on for clients the prosecution or defense in a court of justice. The lawyers who attend to only the more mechanical parts of a suit are sometimes called attorneys, in distinction from counsellors or counsel, who argue and plead in the courtroom, but generally “attorney-at-law” and “lawyer” are synonymous terms. The counsellors are known in England as barristers when they conduct cases in superior courts; they are called solicitors in chancery, and advocates in Roman law. Canon Law distinguishes between the advocate who defends, and the procurator who represents, a litigant; the former argues for his client by invoking the law in his favor; the latter acts merely as the representative of his client and is restricted by his commission.
1996. The Qualifications of Lawyers.--(a) The mental and moral requisites are competency in the knowledge of their profession and devotion to justice, morality, the constitution, and law (see 1943). A lawyer should be zealous for the dignity and reputation of the bar and loyal to associates, but not afraid to take action against practices that are detrimental to his honorable profession.
(b) The legal requisites for practising as a lawyer vary with the place or government. In Canon Law, it is necessary that an advocate be a doctor or expert in ecclesiastical jurisprudence, that he be twenty-one years of age, duly approved, etc. (see Canons 1657 sqq.).
1997. The Duties of a Lawyer in Introducing Cases.--(a) He may not stir up litigation, as a means of bringing himself occupation and gain. The Catechism of the Council of Trent, Translated into English with Notes (Joseph F. Wagner, Inc., New York City, 1923), p. 475, denounces this practice as among the chief violations of the Tenth Commandment. Among lawyers it is regarded as unprofessional, and at common law it is an indictable offense.
(b) A lawyer may not take or assist an unjust cause--one, namely, that is in opposition to moral or positive law, as when a party comes to him with the request that he conduct a spite case whose purpose is to harass or oppress an innocent person. He who defends injustice is a cooperator, and is therefore guilty (see 1779). But if a case has a good foundation in law, the lawyer is not bound to inquire into the subjective dispositions or the conscience of the client in the matter, and he may take the case even though he does not know that the client is in good faith.
(c) A lawyer should not refuse a just cause, merely because the person he is asked to assist is indigent or not in favor. Commutative justice does not oblige him to offer his services to one in need of them; but there is a duty of legal justice to give his best efforts if he is appointed as counsel for a poor person, and also at times a duty of charity to do this if he is asked for legal help by one who is in need.
1998. The precept about works of mercy, being affirmative, does not oblige for every instance, but only when the due circumstances of time, place, opportunity, etc., are present. Hence, a lawyer is not obliged by charity to devote himself to every deserving case that is presented to him (see 1227). (a) Thus, as to place, charity does not require that one go about looking for the needy, but that one help those who are at hand. (b) As to time, charity does not require that one take care of future needs, but that one help those who are in present distress. (c) As to persons, charity does not require that help be given to all alike, for some have a greater claim on one’s charity than others (I Tim., v. 8). (d) As to need, charity does not command that help be given those who can easily help themselves, or who can obtain it from third parties who are better fitted to bestow it.
1999. Charity does not oblige to works of almsgiving, if the inconvenience to the donor is out of proportion to the distress from which the donee is rescued (see 1158). The inconveniences that correspond with the various degrees of distress are thus explained by theologians:
(a) if distress is extreme (e.g., a prisoner is about to be sentenced to death unjustly), a proportionate inconvenience is, according to some, a grave loss, or, according to others, the loss of at least a part of the necessaries of one’s state (see 1231, 1251);
(b) if distress is very grave or grave (e.g., an accused man will be sentenced unjustly to a long and harsh imprisonment), the loss of goods without which one’s state of life cannot be maintained so becomingly is, according to one opinion, not excessive; but, according to another view, any notable loss or inconvenience is excessive;
(c) if distress is ordinary (e.g., an accused will be unjustly sentenced to a small fine), the loss of goods that are purely superfluous is, according to some, a proportionate inconvenience, but others think that only such assistance need be given as will cause no inconvenience whatever, such as advice or other service given during spare times.
2000. When Is a Cause to Be Regarded as Unjust?--(a) In civil cases the suit or defense is unjust when it clearly has no moral right. A lawyer who recommends litigation in a case of this kind is unjust to the adverse party, if that party loses; he is unjust to his client, if the client loses and is thus put to unnecessary expense. Generally speaking, a Catholic lawyer ought not to accept a divorce case. The lawyer’s position is different from that of a judge. Occasionally a judge cannot refuse a case without serious inconvenience to himself (see 1949, 1997); the lawyer, however, is free to accept or refuse these cases. The general prohibition is founded on the fact that in this country most divorce cases are means to an invalid remarriage. Some theologians argue that since it is the remarriage, not the divorce, that is intrinsically evil, a lawyer might accept a divorce case for a very grave reason, e.g., to relieve desperate financial conditions. In practice, however, owing to the danger of scandal, the exception would be rare. Exceptions which are possible include cases where divorce is sought for a marriage that is invalid coram ecclesiam, e.g., civil marriage of Catholics, or simply for the settlement of civil effects Where no danger of remarriage is involved. In all cases involving Catholics, the lawyer should bear in mind the necessity imposed upon Catholics by the Third Council of Baltimore to consult ecclesiastical authorities before seeking civil separation from bed [and board.]
(b) In criminal cases the prosecution is unjust if the accused is clearly innocent. But the defense is not unjust, even though the accused is known to be guilty, for both natural and positive law give the accused a right of defense, and hence he may choose or may be given an advocate, in spite of his guilt.
2001. Duty of a Lawyer When the Justice of a Cause Is Doubtful.--(a) In a civil cause, the lawyer may act, whether for the plaintiff or for the defendant. He may even take a case whose justice seems less probable, for the purpose of the trial is to settle the doubt, and not infrequently the cause that seemed doubtful or less probable at the outset is vindicated by the examination. Some moralists distinguish for cases in which the doubt is one of fact between the defendant and the plaintiff: if the former’s case is less or equally probable, they say, one may take it, but not so if this is true of the latter’s case.
(b) In a criminal case, when life, reputation or other grave issue is involved, the common opinion is that a lawyer may not prosecute if the case of the people is doubtful or less probable, but he may defend, as was just said, even though he is certain that the accused is guilty. The office of the prosecutor is not necessarily to secure a conviction, but to see that justice is upheld, while the office of the defender is to take care that an accused person is deprived of no right or protection that he should have under the law.
2002. If a lawyer through ignorance takes an unjust case, thinking it just, he is excused or not excused according to the character of his ignorance (see 28, 249). (a) Thus, antecedent ignorance excuses from sin and restitution; (b) concomitant ignorance excuses from restitution, but not from sin; (e) consequent ignorance excuses from neither sin nor restitution, if it is crass or affected, but it diminishes responsibility, if it is only slightly sinful.
2003. Duty of a Lawyer Who Discovers that a Case Is Really Unjust.--(a) A lawyer who took a case in the belief that it was just, but discovers that it is really unjust, owes it to himself to abandon the case, for he cannot honorably cooperate with iniquity. The same principle applies, if a client insists upon unjust courses in the support of his case, even though the cause itself be just.
(b) The lawyer owes it to his client in the hypothesis we are considering to preserve the latter’s confidence inviolate (see 1988). He should endeavor to persuade the client to abandon the case; but since the client’s case is unjust, he may not recommend a compromise, except perhaps in reference to expenses.
2004. Lawyer’s Duties towards Client.--Since every contract depends on the mutual consent of the contractants, and since the purpose of the person who retains a lawyer is to receive honest advice and assistance and to give in return a fair compensation, it follows that the lawyer’s duty to a client is to give what is thus expected and not to exact more than this deserves.
(a) Before the case the lawyer should be perfectly candid with the client as to the advisability of litigation or of the employment of himself as counsel in the case. If there is a reason why he would be a less desirable advocate in the case, he should speak of this, so that his consultant may have freedom of choice. He should also study the question presented to him, and give his honest opinion on the strength of the case. If a fair and amicable adjustment outside of court can be made, the lawyer should recommend that this be done, and if it is not clear which party is right, he should advise a compromise.
(b) During the case the lawyer should be faithful to the interests of his client and diligent in the affairs for which he is engaged. Loyalty demands that the advocate give his undivided devotion to his client (e.g., he may not give assistance to the adverse party, he may not receive gifts or compensations from that party; see Code, Canons 1666, 2407), and that he respect the client’s confidences (e.g., he may not use to the client’s disadvantage the information given him). Diligence requires that the lawyer use his best ability and efforts to the end that the client, no matter how poor or unpopular or persecuted, may receive all the remedies or defenses that the law grants him, and that his case may be terminated with all possible speed.
(c) After the case he should be honest in his charges and true to the confidence that was reposed in him. The compensation for the lawyer’s services should be just, that is, a fair return for what he gave. The amount of the fee should be fixed, therefore, by such standards as the law or custom, or by the value of that which the lawyer devotes to the case (e.g., his time and labor, his loss of other employment or prospects, the risk he takes in undertaking the case), or of that which the client receives (e.g., the amount which he gains, the benefit he receives). The wealth of a client does not justify an excessive charge, but the poverty of the client makes it a duty of charity at times to lessen the charges or to make no charges at all (see 1236-1239). It is clear that a lawyer should not compensate himself from the client’s business contrary to the latter’s just wishes.
2005. Lawyer’s Duties towards Other Parties.--The duties of the lawyer to his client do not exempt him from certain duties to other persons who have a part in the trial; for he is responsible to his own conscience and cannot act on the principle that he must win at any cost, or that the client takes all the blame for anything dishonorable that is done.
(a) Thus, respect is due to the judge and politeness to the opposite party, his lawyers and witnesses. Abusive language and improper personalities, therefore, should not be resorted to, and customary courtesies should be shown.
(b) Truth and fair dealing are due to those to whom or against whom the pleading is directed. It is contrary to truthfulness to cite statutes or decisions that are no longer in force, to misquote laws, testimony or the language of opponents, to assert as a fact what has not been proved, to introduce false witnesses or documents, to coach clients or witnesses in untrue stories, to resort to quibbles or sophistry, etc.; it is unfair to attempt to gain special favor from a judge or a jury, to make improper statements or remarks with a view to influencing the jury or the bystanders or the public; to conceal the arguments upon which one relies until the opposition has no opportunity to reply; in a word, to practise any of the tricks of pettifoggery.
2006. Concealment of Truth in Presenting a Case.--Is concealment of the truth in the presentation or defense of a case sinful?
(a) If concealment is not unjust or mendacious, it is lawful. Indeed, a lawyer should conceal such facts as would be harmful to his own case (e.g., incidents that are really of no moment, but that would create prejudice against his client), or as he has learned in confidence. This is not unjust, since the opposite party has no right to the knowledge, and it is not deception, since it does not cause but merely permits others to draw erroneous conclusions. Neither is an advocate bound in justice to point out to the opposition matters favorable to their case, of which they are ignorant or which they do not notice.
(b) If concealment is unjust or mendacious, it is unlawful. Thus, if a lawyer discovers that serious fraud has been practised or that the court or the opposition has been harmfully imposed upon, he is unjust if he takes advantage of this through silence. Similarly, a prosecutor is unjust if he suppresses facts or testimony or papers that would establish the innocence of an accused person.
2007. The Sinfulness of Introducing False or Corrupted Documents.--(a) Truthfulness is sinned against by this practice, whether the document be entirely fictitious or a copy substituted for an original that has been lost, or an authentic instrument has been changed or interpolated (see 1980 a, 1991).
(b) This practice is also against legal justice, since the law requires that no misrepresentations be made about the evidence produced. Indeed, this is a very serious matter, for, if it were ever permissible to tamper with documentary evidence, a way would be opened to frauds innumerable to the great detriment of the public.
(c) Commutative justice is offended by this form of dishonesty, if the cause defended is not certainly just; for the opposite party, since justice is perhaps on his side, has the right that he be not defeated by untruthful means. But if the cause defended is certainly just, there is not per se any violation of commutative justice, since the adverse party is not deprived of anything that is his, but is rather prevented from doing injustice; per accidens, though, there might be commutative injustice (e.g., if the use of a forged exhibit was known to be risky and did actually lose the case for a client).
(d) Charity to self is violated by this deception, since a lawyer should not value his client’s interests above his own conscience, reputation and prospects.
2008. When a Lawyer Is Bound to Restitution.--(a) Unjust damage obliges to restitution (see 1763), and hence a lawyer must indemnify his client or the opposite party for the losses either one suffers through his unjust conduct. The client has a right to restitution if he was put to unnecessary expense because his lawyer did not tell him the case was hopeless or too risky, or if he lost a case because the lawyer was very incompetent or negligent or helped the opposite party, or if he was injured in his reputation or prospects by the violation of his confidences. The opposite party is entitled to restitution if he lost a right or was condemned because the lawyer unjustly took the case against him, or if he suffered other injuries because the lawyer employed foul means to his disadvantage. If a lawyer acts as the mandatary of his client in the use of injustice, the duty of restitution rests primarily on the client and secondarily on the lawyer (see 1783); if the lawyer alone is guilty, he is responsible for all the damage done. There is no duty of restitution if only legal justice is violated (e.g., if some deception is practised in order to win for the side that is in the right), or if charity is wronged (e.g., if one refuses to take the case of a person who is in need).
(b) Unjust possession also obliges to restitution (see 1770), and hence a lawyer who appropriates goods of his client against the latter’s right, or who charges exorbitant rates for his services, or who drags out a case for lucre’s sake, or who has not refunded when he withdrew from a case, should restore his ill-gotten goods. If the amount of a fee is settled by law, an attorney who takes more than the legal sum does not necessarily incur the duty of restitution. All will depend on the character of the law, whether it is penal or preceptive, and if preceptive, whether it obliges in virtue of legal or of commutative justice.
2009. Unjust Words.--We shall now take up the injustice that is done through words spoken outside of a judicial process, or the classes of verbal injustice that are not peculiar to courts, but are committed on all sorts of occasions, public and private. The principal sins here are distinguished according to the different injuries intended by the sinful speaker, and are as follows:
(a) sinful words that signify or effect in another person the evil of guilt, thereby depriving him of benefits that are connected with virtue. Some evil speakers deprive their neighbor of tributes that are paid to virtue by others, such as honor (injury by contumely), fame (injury by defamation), friendship (injury by whispering); while other evil speakers deprive a person of the tribute of virtue paid by his own conscience, namely, self-respect and peace of mind (injury by derision);
(b) sinful words that signify or effect against another person the evil of punishment. The words are known under the general name of cursing.
2010. Contumely.--Contumely is unjust dishonor shown to a person in his presence.
(a) It is unjust, and hence those are not guilty of contumely who speak words that are not honorable to persons deserving of reproof (e.g., in Luke, xxiv. 25, Our Lord calls the two disciples “foolish and slow of heart”; in Gal., iii. 1, St. Paul addresses the Galatians as “senseless”). Similarly, it is not contumelious to call another person by a name that sounds somewhat disrespectful, if this is done in banter or pleasantry and will be taken in good part by the other and do no harm. Thus, to send a comic valentine or good-naturedly to ridicule some of the spectators at a farce is not contumelious as a rule, since most persons are not galled by these gibes, nor are the jokes taken seriously as a rule by the public. But care must be exercised both in serious and playful rebukes to keep within moderation. St. Augustine declares that even in corrections one should use reproachful terms sparingly and only in case of great necessity.
(b) Contumely is dishonor, and so it is distinguished from injurious words that offend some other right (e.g., detraction offends reputation). Honor is an external manifestation of the respect felt for another’s excellence or superiority in some natural or supernatural perfection given by God, such as virtue, authority, nobility, rank, wealth, etc. Contumely, therefore, is either negative, as when one ostentatiously refuses to show another the honor due him (e.g., the salute or title or deference which custom allows him), or positive, as when one manifests signs of disrespect (e.g., names derogatory to virtue or intelligence, or which mean that the person addressed is vile and contemptible).
(c) Contumely is shown to another in his presence, that is, it is an affront directed to his person immediately (e.g., the mockery of Eliseus by the little boys near Bethel, in IV Kings, ii, 23), or mediately (e.g., the dishonor of David’s ambassadors by the Ammonites, in II Kings, x), or at least to his knowledge (e.g., the enemies of St. Paul in Phil., i. 17, who spoke of him insultingly in the expectation that their words would be carried to him).
2011. Are all persons deserving of honor? (a) If honor be taken in its strictest sense for reverence shown to a person who is one’s superior in some good quality, or for veneration for the proper excellence of mankind (viz., virtue), then honor cannot be shown except to those who are more exalted than oneself or to those who are virtuous. (b) If honor be taken in its wider and more usual sense for respect for a good quality, natural, moral or supernatural, in which a neighbor is more worthy at least than some others, then honor can be shown to every rational creature (except the damned, who are irretrievably wicked and outside the pale of friendship); for there is no one, however bad or lowly, in whom there is not something that deserves respect. St. Paul exhorts Christians to be beforehand in honoring one another (Rom., xii. 10), and he urges that each esteem the other as better than himself (Philip., ii. 3).
2012. Various Forms of Contumely.--(a) By reason of the signs used or the external form it takes, contumely is either in words (e.g., the names “thief,” “lunatic,” “bastard”) or in deeds that are equivalent to word (e.g., offensive cartoons or caricatures, insulting valentines or postcards, “poisoned pen” letters, lampoons, scurrilous or opprobrious gestures or acts, sardonic grins, mimicry).
(b) By reason of the thing signified or the contemptible quality that it ascribes to another contumely is also distinguished into reproach, which accuses another of sin (e.g., of drunkenness), revilement (convicium), which ascribes to another either a fault or its consequences (e.g., drunkenness or imprisonment, or diseases of alcoholism), taunting (improperium), which twits another with misfortunes or inferiority (e.g., his lowly origin or poverty or the favors one formerly showed him).
2013. Manner of Confessing Contumely in the Sacrament of Penance.--(a) Circumstances that are of an essential kind, that is, those that change the species or add a new species, must be mentioned (e.g., the fact that contumely was blasphemous or calumnious or scandalous or directed against a cleric or parents). (b) Circumstances that are merely accidental, such as those given in the previous paragraph, need not be mentioned, for they are merely various ways of committing the same sin of contumely.
2014. The Sinfulness of Contumely.--(a) From its nature contumely is a grave sin of injustice, for it robs one of honor, which is more prized than any other external possession, since it is a testimony to virtue and to the esteem of fellowmen honestly earned. Hence, men will often sacrifice health or wealth or life itself to save honor. He who calls his brother a fool is deserving of hell (Matt., v. 22), and the contumelious are classed with those who are delivered over to a reprobate sense (Rom., i. 30). But, as sins of the tongue are imputable only in so far as they express the mind of the speaker, contumelious words are gravely sinful only when they proceed from a direct purpose to inflict serious disgrace (e.g., Titus applies to Balbus an epithet that is not regarded as very abusive, but his purpose is to manifest his supreme contempt), or from an indirect intention to effect this (e.g., Claudius jokingly addresses Sempronius by a very disgraceful title, not meaning any great harm, but knowing that Sempronius will feel this deeply or that in the eyes of the bystanders he will be greatly dishonored).
(b) From the imperfection of the act or the smallness of the matter, contumely is made a venial sin. Thus, if one who is suddenly carried away by anger or who is not thinking of what he says calls another person a very vile name, there is not sufficient advertence for a grave offense; and if one who is acting with full deliberation addresses another in language that is only slightly disrespectful, there is not sufficient harm done to constitute a mortal sin.
2015. The gravity of the matter in contumely depends, not only on the character of the signs of disrespect, but also on the persons concerned.
(a) Thus, the less the respect which the offender owes the offended party, the less the offense. Hence, for a subordinate to call his superior a liar or an ass is a more grievous fault than for a superior to give the name to his subordinate.
(b) The less authoritative the word of the person who utters contumely, or the less evil animus that attaches to his speech, the less the dishonor and the sin. Thus, fishwomen were once notorious for vituperation, but little attention or weight was given to their words. A person of that character, then, might commit only a venial sin by a very abusive word, whereas a person of more respectable character would sin mortally by using the same expression. Similarly, when parents or teachers berate their subjects as fools, blockheads, dunces, etc., there is generally no bad spirit behind these exclamations, and hence the use of such expressions is not very sinful, even when correction is not being made.
2016. Is the gravity of contumely lessened by the fact that the offended person feels the injury less?
(a) If the contumely is felt less because the dishonor itself is less, the gravity of the sin is of course lessened, for example, if the person offended is less deserving, or the person who offends is not taken seriously (see 2015).
(b) If the contumely is felt less only because the person dishonored is very meek and patient, the gravity is not lessened, but is rather increased (see 1725). If the person offended does not feel the injury at all (e.g., because he is very thick-skinned or is very fortunate), less damage is done, but the wrong remains, otherwise, theft from the rich could be excused on the plea that they will not miss what is stolen.
2017. The Causes of Contumely.--(a) Pride is sometimes a cause, inasmuch as those who consider themselves better than others are quick to express the contempt they feel for others, if they hope that this will add to their own glory (Prov., xi. 2). But a proud person will just as often disdain to revile those whom he despises.
(b) Foolishness (see 1621) is sometimes a cause of contumely, for the foolish man speaks without thinking as he should or without caring what damage his words may cause (Prov., xx. 3). Hence, those who speak abusively to others merely in order to raise a laugh among the bystanders, little caring about the disrespect they show, cannot excuse themselves on the plea that it was all a joke.
(c) Anger is the usual cause of contumely, for the angry man seeks to show his revenge in some open and manifest way, and there is no easier or more ready means to this end than bitter, scornful or jeering words. Hence the danger of contumelious reprimands given by superiors. The subject will be enraged by the hard names applied to him, and the superior in his wrath will easily go to extremes, even of mortal sin, on account of the language he uses (e.g., exaggerated invective) or on account of circumstances (e.g., the scandal given).
2018. The Duty of Bearing with Contumely.--(a) As to the internal disposition, one should be ready and willing to suffer insults without making any answer to them, if this is necessary. For the precept of patience requires that one be prepared in mind to tolerate injuries and to give place to wrath, should the circumstances at any time call for such restraint. In this sense Our Lord spoke when He commanded that one turn the other cheek to the striker (Matt, v. 39), and He practised His teaching by making no reply to the insolence of those who were implacable or who only sought material for accusations.
(b) As to external conduct, one should repel contumely when there are good and sufficient reasons for this course, and hence Our Lord protested against the unlawful blow given Him in the court room, and which the judge should have reprimanded (John, xviii. 23). He also refuted those who decried Him as a blasphemer, or glutton, or demoniac, or political disturber. But if no good end will be served by self-defense, or if greater evils will follow from it, no answer should be made. One should be more desirous to possess the right to honor and fame--viz., virtue and a worthy life--than to possess honor and fame themselves, for goodness is always a blessing, but prosperity is not unfrequently a real misfortune. Indeed, Our Lord says that to be persecuted, reviled and calumniated places one in the same class as the good men of the past (Matt., v. 11).
2019. The Chief Reasons for Resistance to Contumely or Detraction.--(a) The good of the offender, in order that his boldness be subdued and that he be deterred from such injuries in the future, is a sufficient reason. Hence the words of Proverbs (xxvi. 5) that one should answer a fool, lest he think himself wise.
(b) The good of others is another reason, in order that they be not demoralized by the vilification of one whom they have looked up to as an example and guide, especially if silence will appear to be a sign of weakness or carelessness or guilt. Hence, St. Gregory says that preachers should answer detractors, lest the Word of God be without fruit.
(c) The good of self is a third reason for replying to contumely, for to enjoy the respect and esteem of others helps many a good person to act worthily of the opinion in which he is held, and it restrains many a sinner from descending to worse things than those of which he is guilty. Hence, Eccl., xli. 15, admonishes that one take care of a good name, and Prov., xxii. 1, places a good name above wealth.
2020. The Duty of One Who Answers Contumely or Detraction.--(a) The spirit of the answer should be that of charity, not that of revenge or of unquiet or exaggerated anxiety about personal honor or fame; otherwise one becomes like to the offender (Prov., xxii, 2). A person would sin even by silence in the face of contumely, if the spirit behind his non-resistance was malicious (e.g., if he intended to enrage the other party the more by disregarding the attack).
(b) The manner of the answer should be moderate, and the reply should not go beyond the bounds of reasonable self-defense (see 1833). It is lawful to deny the charge, or by retort to turn the tables on the assailant, or to sue him for slander or libel; but it is not lawful to challenge him to a duel or to utter calumnies (see 1843).
2021. The Duty of Making Restitution for Contumely.--(a) If contumely is not contrary to commutative justice, there is no duty of restitution. Hence, dishonor that is purely negative, such as the refusal to uncover on meeting a clergyman, does not oblige one to make restitution, for the omission is contrary to the virtue of observance or reverence but not to commutative justice. The case would be different, however, if negative dishonor were so marked or noticeable as to be equivalent to positive disrespect, as when at the entrance of a distinguished personage all in the room arise except one man who remains seated and gives a bitter look at the newcomer.
(b) If contumely is contrary to commutative justice, restitution is due. All agree that commutative justice is violated when contumely becomes vilification, or when an insult is committed in the presence of onlookers with the purpose of making the offended person seem contemptible in their eyes. But there are two opinions about the case when contumely is merely revilement, or an insult offered when there are no others present and the purpose is to make the offended person appear vile in his own eyes.
2022. Opinions on the Duty of Restitution for Revilement.--(a) One opinion holds that injury is done, not damage, and hence that satisfaction is owed rather than restitution. Further, it is held that satisfaction is penal and so not obligatory (except out of charity) before judicial sentence.
(b) Another opinion says that damage is done as well as injury, since men regard an insult, even though offered in private, as an unjust deprivation of a great good. Satisfaction of a very humiliating kind, such as the begging of pardon on bended knees, as being penal, can await an order from authority, but the ordinary forms of reparation, such as expression of regret or request for forgiveness, should be made without any such order (Matt., v. 24).
2023. What Kind of Reparation Should Be Made for Contumely?--(a) In general, the rule is that contumely should be repaired by a bestowal of the same kind of goods as those of which the offended party was deprived; and hence dishonor is repaired by honor, disrespect by respect. The injured party should be aware that reparation is being made, or at least that honor is being shown him. If by reason of contumely one is responsible for other damages that followed (e.g., if one foresaw that one’s affront would lead to money losses, enmities, quarrels, bloodshed, etc.), one is duty bound to make good these losses also.
(b) In particular, the honor that should be offered in atonement is generally an apology, for this is both satisfaction for the wrong done and a token of esteem. At times, according to some, more is required, for if the insult was very gross, a mere request for pardon is perhaps not sufficient; on the other hand, less may suffice, as when the indignity was slight. Many authors hold that a respectful apology is sufficient reparation for any contumely. Among the lesser forms of restitution for dishonor are signs of friendship, courteous greetings, a pleasant chat, an invitation to call at one’s home, a dinner or toast, a eulogistic speech, etc.
2024. The Manner of Making Apologies.--(a) They should be made with at least as much formality as accompanied the insult. Hence, if the injury was public, the acknowledgment of error should also be public. (b) They may be made either personally or by intermediary. If the guilty person cannot very well appear before the offended person, he may send his regrets by letter or through a representative.
2025. Since the gravity of contumely depends on the relations between the parties and other circumstances, an apology is not always necessary.
(a) Thus, if the offender is an inferior or an equal, an apology should be made for a serious insult, at least when the offended person insists on it. Thus, a cheerful salutation by a child does not atone for a vile name applied to his father. If an inferior dishonors a superior through ignorance, he makes amends by acknowledging his ignorance and showing respect, as was done by St. Paul (Acts, xxiii. 5).
(b) If the offender is a superior, an apology is never necessary, lest by abasing himself he lose the prestige which his office should have. Hence, if a father has used harsh language to his child, it would not be seemly for him to ask the child’s pardon, but he should show some mark of kindness to heal the wound.
2026. Cessation of Obligation of Restitution.--The obligation of restitution for contumely ceases in certain cases (see 1797, 1798). (a) Thus, impossibility excuses, as when one cannot make reparation without renewing an old feud that has been buried and forgotten. (b) Forgiveness by the offended person excuses. The offended party forgives the debt expressly when he says or shows that he does not care to have an apology; he forgives implicitly, when he retaliates by an equally injurious action, defends himself by retorting equal contumely on his adversary, or obtains equivalent satisfaction from a court of justice.
2027. A confessor should not impose the duty of an apology in certain cases.
(a) Thus, if this command would be harmful, it should be omitted, as when a penitent is in good faith and would be put in bad faith by the admonition. (b) If this command is not necessary, it should be omitted, as when the duty of an apology has ceased for one reason or another. In the case of children who speak or act disrespectfully to their elders, it may at times be taken for granted that the elders, especially the parents, do not expect an apology for trifling cases of disrespect. But, on the other hand, it may often be advisable to require such children to apologize for their rudeness, in order to cure them of it.
2028. Defamation.--Defamation (backbiting) is the unjust blackening of the reputation of another person by secret words.
(a) It is unjust, that is, it has no reasonable motive to justify it. Defamation differs from just revelation of secret faults.
(b) It is a blackening or besmirching, that is, a taking away or lessening of fame. Defamation casts a shadow over or totally obscures the brilliance of a good reputation.
(c) It is against reputation, that is, against the favorable opinion and report of the public on the virtue and character or other good qualities of a person, Thus, it is defamation to say that an individual is a drunkard, or that a professional man is incompetent, if these persons are not known to have such defects. If a person has no reputation here and now, except a bad one (e.g., a criminal who has just been convicted and sentenced to prison, a loafer who is often seen intoxicated on the streets, a woman who is often heard peddling scandals), it is not defamation to speak about the true and public faults of this person; nor is it sinful to speak thus if there is some suitable reason (e.g., to discuss a murder trial that is being reported in the papers, or to tell a humorous incident that will do no harm). But those who uselessly or harmfully discuss the known weaknesses of their neighbors are sinners called gossipers or fault-finders.
(d) It is against the reputation of a person, that is, of an individual possessed of right. The party offended by defamation can be a natural person (i.e., a rational being, whether infant or adult, high or low, rich or poor) or an artificial person (i.e., a society, group or collection of individuals endowed with reason); he can be either a living or a deceased person, for death does not destroy the soul nor take away the right to reputation.
(e) It is against the reputation of another, that is, defamation as now used is a sin of injustice, and one cannot be strictly unjust to oneself; but “self-defamation” may be used in a wider sense to designate a sin opposed to charity (see 1575 sqq.).
(f) It is accomplished by means of words, that is, by oral communication or its equivalent. One can defame, therefore, by word of mouth, by deaf and dumb language, by writing, by a gesture, by silence, or by a look.
(g) It is done by words or signs that are secret, that is, by words or signs expressed before others but in the absence of the person who is defamed, or at least when he is thought to be absent (backbiting). The defamer is like the thief who wishes to do harm but does not wish the victim to know the author of the harm.
2029. The Differences between Defamation and Contumely.--(a) They differ in their purposes, for the defamer intends to hurt another in his reputation before the public, while the contumelious man intends to hurt another in his honor, either in his own eyes or in those of others. (b) They differ in their manner of procedure, for defamation is behind the back, contumely before the face, of the party who is injured. The defamer has some respect for his enemy, for he fears to face him and resorts to undermining, but the contumelious sinner despises his enemy and shows it by insulting him to his face.
2030. Various Forms of Injury to Good Name.--(a) By reason of the intention, the injury is either defamatory (as when derogatory things are said about another behind his back) or contumelious (as when derogatory things are insultingly said to him in his presence). Hence, there can be injury to reputation that is not contumelious (e.g., the secret spreading of a rumor that Balbus is a drunkard); there can be contumely that is not injurious to fame (e.g., the addressing of Balbus as a drunkard when no else is by, or when those present know already that he is a drunkard), and contumely that is injurious to reputation (e.g., when one calls Balbus a drunkard before others who thought he was a sober man).
(b) By reason of the purpose, defamation is willed either explicitly or implicitly. In the former case the defamer expressly intends the blackening of his neighbor’s reputation; in the latter case he intends something unnecessary, such as mere indulgence of levity or talkativeness, though the blackening of his neighbor is foreseen. Explicit defamation is regularly a mortal offense, implicit defamation a venial one; but the degrees of sinfulness may be changed, if the former sin causes slight, or the latter sin serious damage.
(c) By reason of the injury done defamation is either detraction or calumny. Detraction blackens a reputation by revealing faults or defects that are real; calumny (slander) injures reputation by stories that are untrue. A common form of calumny is a mixture of truth and falsehood (e.g., when a historian ascribes to a villain, in addition to real crimes, faults of which the latter was innocent), or of half-truths that convey the impression of what is untrue (e.g., when a historian narrates that a certain character killed a man and does not give the background or causes of the killing, such as provocation, challenge, mistake; or when a biographer tells of the crimes of his subject and glosses over the virtues, or makes no mention of his amendment).
(d) By reason of the means used defamation is either direct or indirect. Direct defamation is more open and positive; indirect defamation is rather concealed or negative. There is also the distinction of slander (which is oral) and libel (which is written or printed). Libel is more grievous, since it has a permanence that is not found in spoken words.
2031. Examples of Indirect Defamation.--(a) Faint praise is a subtle mode of defamation, as when one says of an absent person that he has not committed murder yet, or that like everyone he has some good points, for to the listeners this indicates that the speaker does no hold a high opinion of the person discussed.
(b) Silence is also at times a hidden form of defamation, as when Titus says to Balbus that the absent Caius is good and Balbus out of malice answers: “Let’s talk about something else; we must be charitable”, or when Sempronius falsely declares in company that the absent Claudius is to the knowledge of Julius a depraved character and Julius, who is present, makes no protest against the misrepresentation.
(c) Depreciation is defamatory, as when one says that a person who is being discussed is not as pious or reliable as is commonly believed, or that there is great room for improvement, or that he is much better now than in times past, or that there is another side to the picture, or that he is good, but....
(d) Denial of good qualities is defamatory, when it lessens the esteem in which a person is held. The good qualities here referred to are those that render a person distinguished or commendable among his fellows: chiefly these are moral qualities (viz., virtuous habits, dispositions and acts); secondarily, natural and internal qualities (such as learning, quickness of mind, experience, strength and health of body, and in women, beauty); finally, natural and external goods (such as wealth, famous ancestry, able assistants in business, or the excellent merchandise supplied, etc.).
2032. Examples of Direct Defamation.--The following are examples of direct defamation:
(a) sinister interpretation, as when one states that words or acts of a neighbor that were good or at least open to a good interpretation, were dictated by greed, ambition, pride, etc.;
(b) unjust revelation (detraction), as when one reveals secret faults or crimes;
(c) exaggeration, as when one magnifies a venial into a mortal sin, an exceptional or indeliberate fault into an habitual or deliberate sin; or when one distorts a sin of one species into a sin of another and far more heinous species, or accuses a whole class or body of men because one of their number has fallen. Those who add their own little detail or circumstance to a defamatory tale as they pass it along are proverbial examples of exaggeration: “Fama crescit eundo”;
(d) false accusation (calumny) is the worst kind of defamation. Innocent XI condemned the proposition that one may probably use calumny without serious sin as a defense of one’s own justice and honor (see Denzinger, n. 1194).
2033. Direct defamation is committed either by plain words or by insinuation. (a) Examples of defamation by innuendo are those ambiguous expressions or half-veiled accusations that arouse suspicion and often do more injury than plain accusations. Thus, to say with a laugh or in an ironical tone that a certain person is human, or broadminded, or prudent may be equal to volumes of abuse, since the words can have a bad meaning as well as a good one. Similarly, such expressions as, “What I know about him is not to be told,” “I know what no one would believe,” etc., may be taken for slurs on character.
(b) Examples of defamation by plain speech are all those innumerable statements which, either in general terms (e.g., that another person is a scoundrel, a villain, a reprobate) or in specific ones (e.g., that another person is a blasphemer, a thief, a liar), tend to blacken the good name of a neighbor.
2034. Good Repute or Fame.--Good repute or fame is of various kinds. (a) Thus, by reason of its object, good reputation is either negative or positive. A negatively good reputation consists in the absence of any unfavorable opinion or belief about a person, while a positively good reputation is the common judgment in favor of a person’s worth. (b) By reason of its relation to the real character of a person, it is either true or false. Thus, if a man is regarded by the community as honest, his reputation is true when he is really honest, but it is false when he is in fact dishonest. (c) By reason of its degree, it is either ordinary or extraordinary. Ordinary good repute is that which every person needs, and it consists in the public belief that an individual is trustworthy and competent in the affairs and duties that pertain to his state or occupation. Extraordinary fame is that which is not necessary, such as the celebrity which a person enjoys for unusual ability as a statesman, orator, financial expert, mathematician, or for virtue that is far above the average.
2035. The Right to Good Reputation.--(a) Those who are absolutely unknown (i.e., both as to their identity and their character) have no right to reputation, since reputation attaches to one who can be named or described, and hence it is not defamation (though it might be rash judgment) to say that a stranger who passed on the street and was lost in the darkness must have been a criminal.
(b) Those who are known by sight or name, but who have not as yet shown what they are, have a right to a negatively good reputation, for a man should not be considered evil until his conduct has given ground for unfavorable judgment (see 1727 sqq.). It is not defamation to say about an unknown family that has moved into a locality that we do not know what kind of people they are, but it is defamation to say that they are likely undesirable.
(c) Those who are known in a place and who have already acquired a good name there have a right to a positively good reputation; for, if the reputation is true, it is a good which they have honestly acquired; if it is false, it is a good of which they are in possession, and possession itself is entitled to respect.
2036. Sinfulness of Detraction.--The civil law does not generally punish slander if the slanderer can prove that his statements are true, but this does not make veracious defamation morally lawful. God detests and punishes crimes (e.g., fornication) of which human law sometimes takes no account. The harmfulness of veracious defamation is both public and private.
(a) Defamation Does Public Harm.--The peace and order of the community would be seriously disturbed, if it were lawful to attack reputations simply because one was persuaded that they were unfounded: the person detracted would be hampered in his official business and social relations, innocent persons would be blackened as well as the guilty, and the friends and relatives would suffer with the person detracted.
(b) Defamation Does Private Harm.--The peace and security of the individual would be uselessly assailed. Reputation is profitable both in spiritual and temporal ways, and it is therefore a ruthless act to rob a person of it, when he has done nothing in public to forfeit it and its possession by him is harmful to no one.
2037. Right to True and False Reputation. There is, nevertheless, a difference between the right to a true and the right to a false reputation.
(a) Thus, the right to a true reputation is an absolute and universal right, one which does not cease in any case, for truth and justice demand that one should not represent as evil a person who is really good. This right applies to an extraordinary, as well as to an ordinary reputation.
(b) The right to a false reputation is a relative and limited right, one which ceases when the common good on which it rests no longer supports it (e.g., when it cannot be maintained without injustice). Moreover, there is no right to an extraordinary reputation, if it is based on false premises, for the common good does not require such a right, and hence it is not detraction to show that the renown of an individual for superior skill or success is built up on advertising alone or merely on uninformed rumor.
2038. Sinfulness of Gossip or Criticism about Real and Known Defects.--(a) It is not unjust, per se, since it does not take away fame, that being non-existent. (b) It is sinful, if there is no sufficient reason for it, but not mortally sinful per se, since grave harm is not done to the reputation of one whose reputation is already bad. The sin committed is usually that of idle talk or of uncharitableness, by reason of the disedification offered the listeners, or the malice that prompts the speaker, or the sadness that is caused to the person gossiped about. Gossip is dangerous, since it prepares the way for detraction, as detraction prepares the way for calumny.
2039. Moral Species of Defamation.--(a) Moralists agree that wrongful defamation is a sin against justice and charity. It violates justice, since it infringes a right which is not less strict than that of proprietorship over goods of fortune; it violates charity, since it is opposed to friendship and love of neighbor. They also agree that other species of sin can be added to defamation (e.g., infidelity, as when one denies that Christ was sinless, or blasphemy, as when one defames a Saint).
(b) Moralists disagree on the question whether certain forms of defamation are distinct sub-species or only degrees of one lowest species. Some hold that detraction and calumny are distinct species, because calumny adds mendacity to defamation; others say that detractions about specifically different sins are distinct kinds of detraction (e.g., that it is one species of sin to say that a neighbor is a drunkard, and another species to say that he is a thief, and the reason is that the reputation for temperance is a different thing from the reputation for honesty, etc.); still others hold that defamation of parents and other immediate relations is a special form of defamation, as being contrary to piety. There are, on the contrary, theologians who reject all these distinctions and hold that the difference between defamations is only one of more or less, since all of them have the characteristic note of attack on reputation, which is one right. Hence, just as the stealing of a cow and the stealing of a cat are only greater and lesser forms of the sin of theft, so likewise calumny and detraction, etc., are only major and minor degrees of the sin of defamation (see 2012, 2013, 2115).
2040. Species of Sins of Defamation.--Since the species of sins must be particularized in confessions, the question of the distinction between defamations has practical importance. The common opinion on the line of action to be observed seems to be as follows:
(a) the penitent is obliged as a rule in serious matters to tell whether his defamation was simple detraction or calumny. The reason for this, according to some, is the specific difference between these two sins; according to others, the reason is that otherwise the confessor cannot know whether the sin was mortal or venial, or what restitution is to be imposed. As to detraction of parents or superiors, it seems that the quality of the person detracted should be mentioned, if there was any incitement to disrespect or disobedience;
(b) the penitent is not obliged to mention the sins or defects he ascribed to the person he defamed. Nor should the confessor inquire about this unless it is necessary in order to know what was the gravity of the sin or what kind of reparation should be enjoined (cfr. 2013). Moreover, questions about what was said might easily lead to a disclosure of the name of the person defamed, and thus the confessional would be turned into a place of defamation.
2041. The Numerical Multiplication of Defamations.--(a) They are multiplied when there are many sinful acts about distinct objects; for example, when Balbus calumniates Caius today as a thief and Claudius tomorrow as another thief, there are two calumnies (see 209).
(b) Defamations are multiplied when there are many sinful acts about the same object; for example, when Balbus calumniates Caius today as a thief and repeats the same calumny tomorrow, there are two calumnies. But if Balbus begins his story today and does not finish it till tomorrow, there is one calumny (see 214, 215).
(c) Defamations are multiplied when there is one sinful act about many distinct objects; for example, when Balbus calumniates by saying that the two worst thieves he knows are Caius and Claudius, there are two sins. But if Caius and Claudius are regarded as a unit (e.g., if they are the firm of Caius and Claudius), there is one sin. A like calumny would be that Caius came from a dishonest family (see 216-219). If Balbus calumniates Caius before ten persons, he does not commit ten defamations, it seems, but ten scandals, since the ten form a body in the matter of fame, but are individuals in the matter of example. If Balbus calumniates by saying that Caius has broken all of the ten commandments, there may be ten calumnies or but one calumny, according to the intention and the effect (see 217, 218).
2042. The Theological Species of Defamation.--(a) From its nature defamation is a mortal sin, and hence the Apostle declares (Rom, i. 29, 30) that detractors are hateful to God. In the first place, it inflicts an atrocious injury on the public welfare, sowing everywhere hatreds, dissensions and disorders--so much so that detractors are rightly called an abomination to mankind (Prov., xxiv. 9).
(b) From the smallness of the matter or the imperfection of the act defamation may be only a venial sin. Criticism of others is a vice so widespread that almost all mankind (even pious persons) would be involved in continual mortal sins, were it not for the fact that sins of speech are frequently the result of ignorance, thoughtlessness, or sudden passion (James, iii. 2 sqq.), and that the things said are frequently of no great harm to the person criticized.
2043. The gravity of the harm done by defamation is well expressed by St. Bernard when he says that defamation at one blow inflicts a mortal Wound on the person defamed, on the defamer himself, and on the listener.
(a) Thus, the person defamed is robbed and often irreparably of a good name, one of the most esteemed of possessions; he is deprived of many spiritual and temporal opportunities, and is frequently dragged down to social and moral ruin, and even to suicide. Scripture says that the tongue of the detractor has the sharpness of a razor, and it compares him to an arrow dipped in poison, and to a biting serpent.
(b) The defamer destroys his own good name, at least in the sight of God, for he defiles his own soul with guilt; he disgraces himself before others, since it is well known that defamation is the vice of those who feel themselves inferior or guilty. And, worst of all, his sin is seldom repented of or repaired by satisfaction, since the defamer is generally too proud, hateful, jealous or revengeful to acknowledge his error, or is so blind that the thought of the harm he has done and of the grave obligation of satisfaction never crosses his mind.
(c) The listener is scandalized and contaminated by what he hears, his ideals are shattered, his respect for virtue or religion is destroyed, and he is encouraged to continue the work of the defamer.
2044. Comparison of Defamation with Other Injuries against the Neighbor.--(a) Defamation is less sinful than injuries to internal goods, and hence homicide and adultery, which are opposed to the good of the body and of life itself, are graver sins than defamation.
(b) Defamation is less sinful than injury to higher external goods perpetrated in a contemptuous manner, for defamation being secret does not add insult to injury. Hence, just as robbery is more offensive than theft, so is contumely more sinful than defamation.
(c) Defamation is more sinful than injury to lower external goods, such as lands and money, for fame along with honor approaches spiritual things on account of their relation to virtue, whereas wealth is of the order of corporeal things. Hence, the Scriptures teach that a good name is more important than great riches (Prov., xxii. 1), more enduring than thousands of vast and precious treasures (Ecclus., xli, 15).
2045. It should be noted that the foregoing comparison is based on the nature of the sins compared, for by reason of circumstances the order given may be reversed; for example, a slight indignity is less serious than an outrageous calumny, the theft of thousands of dollars is far more sinful than the circulation of a ludicrous story that is harmful, but only in a slight degree, to the reputation of a neighbor (cfr. 220 sqq.).
2046. Rule for Determining the Seriousness of Defamation.--The rule for determining whether the matter of defamation is serious or not is the amount of harm done by the defamation, and hence not one but several factors have to be considered.
(a) Thus, the defect ascribed to the neighbor has to be considered, for some kinds of defects (e.g., littleness of body or prodigality) are less disgraceful than others (e.g., dwarfishness of mind or soul or niggardliness), and it is more harmful to reveal one mortal sin than to reveal a hundred venial sins.
(b) The person defamed is to be considered, for imputed defects that are not harmful to one person may be harmful to another (e.g., the charge of being a toper might be considered praise among persons of gay or rough habits, but it would be regarded as disgraceful among serious and refined persons).
(c) The person who defames is also to be considered, for little attention is paid to the talk of some, but much weight is given to the slightest words of others. Indeed, some persons’ condemnation is equivalent to praise.
(d) Finally, the persons before whom the defamation is spoken are to be considered, for everyone knows that it is much more harmful and dangerous to speak ill of others before certain ones than before others (cfr. 1461, 1462).
2047. The Harm Done by Reason of the Defects Revealed.--(a) If the defects are natural imperfections of soul or body that do not connote moral stain or turpitude, and if no great detriment is caused by revelation (e.g., to say that another person is deaf, hunchbacked, a beggar, or dense), disclosure is not in itself serious, or even sinful; for little or no harm is done, and the defects are of such a character that they can be readily discovered by observation. But if the defects are very ignominious or harmful, defamation is a grave sin (e.g., to say that a very distinguished person is illegitimate, or of a mixed race, or that his immediate relative was a criminal).
(b) If the defects are related to moral stain, but do not imply it, revelation of them is not a grave sin, provided no great loss is caused by it (e.g., to say that a person is scrupulous about himself, or has certain peccadillos or human imperfections). If a shortcoming is usually understood as a propensity rather than as a fault (e.g., quick temper, high-strung disposition, pride, closeness with money), there is little if any harm done by speaking of it. But if the defects mentioned are such as imply or insinuate actual moral lapses (e.g., to say that a person has a venereal disease and the cause is unknown, or that he has delirium tremens or morphinism, or is of a very passionate nature), the revelation is defamatory and more or less sinful.
(c) If the defects are moral, he who reveals them is guilty of sinful defamation. But the harm done by the imputation of moral guilt is greater in some cases and less in others. Some sins are more disgraceful from their degradation (e.g., carnal sins, see 224), and from this point of view it is worse to accuse a neighbor of gluttony or sexual irregularity than of pride. Some sins (e.g., solicitation, sodomy) are especially heinous in the eyes of the law and produce legal infamy, because they are more harmful to the public or more subject to public contempt (see Canons 2320, 2328, 2343, 2351, 2356, 2357). There are also some defamations that are less harmful to reputation, but more damaging to material prosperity (e.g., it is usually more hurtful to the prospects of a person in business to be charged with incompetency, dishonesty, or carelessness than to be charged with religious indifference or impurity). Finally, there are gradations in the malice of the same kinds of sin (see 197), as in the angry thought, the angry word, the angry deed, in tipsiness and drunkenness, in occasional and habitual lying, etc.
2048. Is it sinful to narrate the secret faults of another, if at the same time one tells of his repentance and amendment?
(a) If the infamy remains in spite of the remarks about a change of life for the better (as is generally the case), the narrator is guilty of sinful detraction. Thus, it is very harmful to one in an exalted position if it is given out that he was at one time bibacious, but succeeded in thoroughly curing his appetite. The same principle applies to those who praise in one matter and detract in another (e.g., by stating that a person is very learned, but also very dishonest).
(b) If the infamy does not remain, because the atonement is so extraordinary as to make the hearers think little or nothing about the fault, the narrator is not guilty of sinful detraction. Thus, it is not detraction to narrate that a saint was so grieved over a lie he told that he did lifelong penance for it, or that a person who was once lukewarm--a thing that is quite common--has in later years become fervent in an uncommon degree. But the stigma that attaches to uncommon sins or carnal sins is hardly overcome by the mention of repentance, unless the person spoken of is already long dead or is one from whom very little is expected.
2049. The Harm Done by Reason of the Person Defamed.--(a) Serious faults are sometimes attributed to certain persons without serious sin, because, on account of the life led by these persons or the notoriety they have already achieved, they suffer no serious detriment when defects like to those already known are charged against them. Thus, if it is well known that a person keeps company with a fast set or consorts with a tough gang, he suffers little if one reveals that he uses profanity, gambles, drinks to excess, etc.; and if it is known that a person has these vices, he is not harmed much by mention of a particular instance or by the additional report that he has been arrested for cheating and disorderly conduct. But the case is different if defects unlike those already known are charged (e.g., if one says of a person known as a liar that he is also a thief), unless the person spoken of has so black a name as an all-around cheat that no new crime charged to his account can give a deeper dye to his reputation.
(b) Light faults or acts that are not sinful in themselves are sometimes matter of grave defamation when spoken of certain persons, namely, when so much is expected from these persons that even minor defects are serious blots on their fame. Thus, to say that a layman is a confirmed liar or loves the opposite sex might be only a venial sin or no sin at all, but the same statements about a grave cleric would be seriously defamatory.
2050. Defamation supposes that the party who is injured is in possession of a good name. But it is possible that the same individual who enjoys a good name in one place or time, has a bad name in another place or time. Hence, a number of special cases on defamation present themselves for consideration.
(a) Thus, there is the case in which a person who has a good name here is juridically infamous elsewhere; that is, he has lost his good name elsewhere through a final and valid sentence, conviction, or confession made in a public trial (see Canon 2197).
(b) There is the case in which a person who has a good name here is actually infamous elsewhere, that is, his crime is known to so many persons there that it is morally impossible to keep it secret or excuse it.
(c) There is the case in which a person who has a good name now was in bad repute formerly; that is, his bad name of the past has been forgotten or has been obliterated by many years of good living.
2051. Meaning of the Expression “Infamous in a Certain Place.”--(a) The place referred to is either a closed community (e.g., a monastery, a college, a family) or an open community (e.g., a village, a neighborhood, a parish, a town, a city); (b) the notoriety referred to is either universal (i.e. known to all the community), or general (i.e., known to the greater part of the community), or sufficient (i.e., known to so many and such talkative persons that the whole community will shortly be made to share in it). A crime known only to one or two, or to a small circle of Christian-living persons, is not notorious.
2052. Number of Persons Who Are Required for Sufficient Notoriety.--(a) Some authors assign certain definite figures for this purpose--for example, in a closed community of thirty or a hundred members a fact is notorious if known to seven or fifteen; in a neighborhood of forty persons, if it is known to eight individuals from different families; in a village whose population is one thousand, if it is known to twenty here and there; in a town of five thousand people, if it is known to forty here and there.
(b) Other authors hold that no invariable rule can be given, but that in each case the matter has to be determined by a prudent judgment based on the character of the crime, the quality of the guilty person and of the persons present at the time, the publicity of the place, etc. Thus, if the crime was committed in some central spot from which news was quickly disseminated, a smaller number of spectators would make a deed notorious in the surrounding territory.
2053. Publicity of Commission or Report.-Actual infamy or disrepute is produced either by the publicity of the crime or by the publicity of the report.
(a) Thus, a crime has publicity in its commission when it was done in a public place (e.g., on the street, in a public room) or in a private place but before a considerable number of persons, or when its indications were publicly given (e.g., by a confession, by maintenance of a suspected woman in one’s home), or when it was submitted to public notice or judgment (e.g., the acts of one in public office, the words of one who delivers a public address, the deeds of one who boasts about them).
(b) A crime has publicity in its report, when it is widely known, whether due to the talk of the people, or to presumptions or suspicions.
2054. Revelation about a Person Who Is Juridically in Disrepute Elsewhere.--(a) This exposure is not contrary to commutative justice, according to the common opinion, for the condemnation deprives the criminal of his right to fame (as regards the matter in which he is found guilty) in all places, and it is often to the interest of the public to know who has been convicted of crime elsewhere. Exception should be made for the case in which a trial is conducted secretly in order to spare the reputation of the condemned, as when a corporation expels one of its members after a hearing and an unfavorable vote (see 2057).
(b) This revelation is contrary to charity when it deprives a person without reason of the good fame which he possesses and which he would not otherwise have lost; for we should love our neighbor as ourselves. Example: Balbus served a term in jail in the town of A, on account of drunkenness. He then moved to the distant town of B and by his good conduct built up an excellent reputation. Claudius from A arrives and maliciously spreads around the news that Balbus had been once in jail for drunkenness. Claudius sins gravely against charity.
2055. Revelation about a Person Who Is Actually in Disrepute Elsewhere.--If the person in question will in all likelihood soon lose the reputation he has here, the following cases must be considered:
(a) if the disrepute is based on the publicity of a misdeed, the revelation is not opposed to commutative justice; for he who sins publicly thereby resigns his right to reputation as regards all those persons and places to which knowledge of his delinquency is likely to arrive. The revelation is against charity, however, if there is no sufficient reason for it; but since the news would be soon brought hither from other sources, no great harm is done and no serious sin committed by the revelation;
(b) if the disrepute is based on public rumor and the rumor is unjust, revelation, according to some, is opposed to commutative justice, since it is nothing but a continuation and extension of the original injury. Others hold that, unless one knows the rumor to be false, revelation is not unjust in this case, since, as is supposed, the revealer was not the author of the rumor, and those to whom he spoke would have learned it shortly even without him. Of course, if the person about whom the revelation is made suffers some considerable damage by reason of the early loss of his good name, the person who makes the revelation unnecessarily is guilty of serious sin. And rumor should never be represented as an established fact.
2056. If the revelation is made about one who is actually in disrepute elsewhere, but who is in little danger on that account of losing the good name which he has here, opinions differ regarding the extent of the guilt.
(a) Some hold that revelation in this case is a grave sin against charity, since in a serious matter it saddens a neighbor, and thus violates the rule of love to do unto others as we would have them do unto us; and others add that it is also a grave sin against justice, if the party spoken against is solicitous about his fame, since it deprives him without reason of a great good to which he is entitled on account of undisturbed possession.
(b) Others hold that this revelation is not a grave sin, either against justice (since the right of the community to know about crimes that were committed elsewhere prevails over the right of the individual) or against charity (since charity does not oblige under grave inconvenience).
(c) Others again distinguish between different cases, Thus, some say that, if the crime in question is one that is very detrimental to the public (e.g., murder, treason, white slave traffic, scandalous impurity), the opinion under (b) is true; whereas, if it is one that is not of that character (e.g., drunkenness in a private person), the opinions under (a) are true. Some also distinguish in the case of non-pernicious delinquencies between those that are notorious elsewhere by reason of the public way in which sin was committed and those that are notorious only on account of rumor; in the former case, they say, the manifestation is not unjust, for, although public good does not call for it, the guilty person himself has forfeited his right by the public manner in which he sinned; but in the latter case it may easily be unjust (see previous paragraph). The mere fact, however, that a fault which contains no threat to the public welfare was committed in a public manner does not seem to be a sufficient reason for manifestation (e.g., when it will injure a man in earning a living or in supporting his family), and we believe that one who speaks of such a fault without necessity sins against charity, if not against justice, and that the sin is often mortal.
2057. Notoriety in a Closed Community.--Notoriety in a closed community is not absolute publicity, and hence the conclusions just given on absolute publicity do not apply to closed communities.
(a) Thus, if a fault is actually notorious in a closed community, the members may speak about it to one another, if there is any sufficient reason for this. Hence, if the majority of the members of a religious house know about a fault that has been committed there, it may be divulged to one who is in ignorance about it for his instruction or warning. Similarly, servants in a house may tell other domestics about faults which are commonly known in the house.
(b) If a fault is notorious in a closed community but not outside, the members as a rule may not speak or write about it to outsiders without injustice, for generally speaking there is no reason arising from necessity or utility for such a revelation. Moreover, the community itself suffers in repute from such disclosures, since outsiders will be impressed with the thought that the community has wicked members or is lax, and that there is a lack of unity among them. To carry stories from one monastery or house to another (even of the same Order) is a form of detraction to outsiders, according to St. Alphonsus.
2058. Revelation about a Person Formerly in Disrepute.--When the revelation concerns one who was in disrepute formerly, but who has a good name now, either because his crime has been forgotten or because he has lived it down, a distinction must be made between juridical and actual notoriety.
(a) If the former disrepute was juridical notoriety, the revelation of it is not unjust, since condemnation pronounced in a court of law gives the right to others to make the sentence known in any place or at any time; but more probably it is mortally uncharitable, if made without necessity, since it harms the other person or his family in the reputation which he has honestly recovered, thus depriving him of a good most useful to him and hurtful to no one else.
(b) If the former disrepute was actual notoriety only, the revelation is uncharitable, according to all, since it does not observe the golden rule of doing to others as we would be done by. Many hold that it is also unjust, since an obliterated crime is the same as an occult crime, which cannot be divulged without injustice (see 2067). Moreover, the person who has built up for himself a new reputation has a right to it, and by the revelation of the old reputation this right is infringed, inasmuch as his present good name is also lost or made useless. It should be noted that the common good sometimes makes exceptions, and thus it is not forbidden to historians to make revelations about happenings that throw a new and unfavorable light on the youth or earlier years of persons no longer living (see 2072 Sqq.).
2059. Case in Which the Name of the Person Defamed Is Not Given.--(a) If there is nothing to indicate the individual and no reflection is cast on a body to which he belongs, per se no sin is committed. Hence, if one says, “A certain person whom we shall call Balbus stole a sheep,” there is no defamation in the narrative, even though a real happening is described. Similarly, if one says that in the city where he is speaking there are many criminals, or that even among his numerous auditors there are doubtless some who are living in mortal sin, there is no defamation.
(b) If there is something to indicate the individual meant, or if reflection is cast on a body to which the individual belongs, sin is committed by the remarks. Hence, if the narrative about Balbus and the stolen sheep went on to describe incidents so that the hearers could easily perceive that Balbus was a person known to them, this person would be injured in his fame. Again, if one states that in a certain city which one names 90% of the married people are addicted to drunkenness, or that the party who was guilty of some scandalous act was a member of a Religious Institute, harm is brought directly upon individuals or damage is done to societies. It is true that an organization is not really discredited by the misdeeds of one of its members, but in popular opinion very often the disgrace of one is the disgrace of all.
2060. Defamation of Deceased and Legal Persons.--(a) Defamation of the dead, whether they be long or only recently dead, is sinful per se, since the departed are capable of a glorious or inglorious memory, and it is reasonable that one should wish one’s good name to be respected after one’s death, both for one’s own sake and for the sake of others. Hence the saying, “De mortuis nil nisi bonum.” But per accidens it is not sinful to make revelations about the dead when this is necessary for historical truth (see 2072 sqq.). Defamation of the dead in itself is less sinful than defamation of the living, since the dead have less need of a good reputation; but circumstances may be such that one who defames a dead person does serious harm and commits a mortal sin.
(b) Defamation of legal persons is also sinful per se, since these bodies possess along with other rights of natural persons the right to a good name. Public esteem is very necessary for them, and they are protected in their enjoyment of it by the laws. Thus, it is injurious to state that a certain Religious Order or monastery or diocese is relaxed, or that a certain business corporation is not well managed. But per accidens it is not sinful to make revelations about organizations, when there is a sufficient reason for the revelation (see 2067). For example, if a political party is preying on the citizens, or if a mercantile house is practising frauds, the common good would require one to make these facts known. Neither is it sinful to mention faults or defects that are notorious, for example, that a certain government is warlike, that a certain people is backward, that a certain group is devoted to erroneous principles or practices (Tit., i. 12).
2061. The Harm Done by Reason of the Person of the Defamer.--(a) The person of the defamer increases the harm when his authority is greater. A person who is supposed to be better informed (e.g., one who reports that he was an eyewitness of the event he narrates), or who enjoys a better reputation for truth (e.g., one who is in an official position, or who is thought to be honest and disinterested), does more harm by defamation than another whose authority is weak.
(b) The person of the defamer decreases the harm when his authority is less. Hence, those who give out unfavorable reports about others with reservations (such as “perhaps,” “it is not impossible,” “it seems so, but I would not swear to it,” etc.), and also those whose weight as authorities is light (such as talkative, lightminded, envious, gossipy, or untruthful persons), do less harm than persons who are held in higher repute. The confessor should not let these defamers off easily, however, since many of them act on the principle that if enough mud is thrown, no matter how foolish the charges, some of the mud will stick.
2062. One of the commonest forms of defamation is the narration of some crime or defect at second hand, as when the defamer introduces his remarks as follows: “They say,” or, “It is reported,” or, “I hear,” etc.
(a) The mode of defamation here lessens the sin when it weakens the effect of the story upon the hearers. Hence, if one says that the talk of the town is that Claudius is a heavy drinker, and the listeners gather from this only that there is a vague rumor which cannot be traced to any source or be confirmed by any fact and which is therefore unreliable, the harm is less.
(b) The mode of defamation here does not lessen the sin when it does not weaken the impression of the story; on the contrary, it increases the sin when it adds strength to the story. Hence, if one says that Claudius is said to be an excessive drinker, and if from the phrasing the listeners will understand that the report originated with very good authorities, or that it is based on general knowledge of the public, the harm is greater. Justice is violated if the narrative itself inclines the hearers to sinister thoughts or suspicions, for then the narrator causes the harm; charity alone may be violated if it is only the character of the listeners (e.g., their suspicious or frivolous minds or their own guilt) that engenders in them evil opinion, for then the narrator only occasions the harm (cfr. 1447, 1464).
2063. The Harm Done by Reason of the Listeners.--(a) The quality of the listeners makes a difference, since it may cause the person defamed to suffer more or less readily in their eyes (e.g., if they are suspicious, or prejudiced, or credulous, or guilty themselves, they will more easily believe evil about others) or in the eyes of others (e.g., if the listeners are newsmongers or enemies of the person defamed, the spread of the defamatory story is more certain). The loss itself may be greater or less on account of the character or position of the listener (e.g., loss of reputation with a friend or a virtuous person is felt more, loss of reputation with customers or employers is more damaging, etc.).
(b) The quantity of the listeners also makes a difference, since it is more harmful, other things being equal, to be defamed before several than before one. Hence, the fact that many persons are present when the defamation is uttered is an aggravating circumstance of the sin. Whether it multiplies the sin numerically, so that one commits as many sins of defamation as there are persons who hear and are impressed, is a disputed point. Those who hold for multiplication argue that the defamed person has a distinct right to his reputation with each person present; those who deny multiplication contend that the right to reputation is a single object, since reputation is the opinion of others, whether they be many or few. This latter view seems to be more common, and its practical bearing is that a penitent need not mention the number of persons before whom he defamed his neighbor (see 217).
2064. Is the malice of defamation aggravated by the fact that the listeners are peculiar and think the defect mentioned is far more serious than it really is?
(a) If only the harm to reputation is considered, it does not seem that the over-strict notions of the listeners increase the sinfulness of defamation; for the harm to reputation is to be measured by the common opinion, not by the singular ideas of certain persons. Example: Sempronius tells that Balbus wastes a little time in telling humorous incidents and reading detective stories. The small group of auditors think that this is one of the blackest of crimes.
(b) If other harms are taken into account, the peculiar ideas of the listener may add to the sinfulness of defamation. Thus, if a young person of delicate conscience will be scandalized at hearing that Caius plays cards, or if older listeners will be led by this remark to take their trade away from Caius, the sins of scandal and of unjust damage are added to defamation. Defamation often destroys in the listener all faith in humanity, or all belief in religion.
2065. Detraction to One Discreet Person.--Is detraction a mortal sin, if the revelation of a serious sin is made without sufficient reason but to only one prudent and discreet person, who will neither divulge the information, nor be influenced by it to the harm of the party spoken against?
(a) If the purpose of the speaker is to inflict serious injury on his neighbor, mortal sin is committed, since the gravity of the sin is measured by the malevolence of the will.
(b) If the purpose of the speaker is not to inflict serious injury, but only to indulge his love of talk, levity of mind, etc., the gravity of the sin depends on the actual harm that is done; for one wills indirectly the harm connected with one’s acts, even when one does not desire it directly (see 102). Hence, if the harm is in fact serious, mortal sin is incurred by the detractor, unless he is excused from it by the imperfection of his deliberation or consent. How much harm, then, is done in this case? Most moralists, it seems, think grave harm is done, since the loss of good name with one prudent man is generally more distasteful than its loss with many light-minded persons. Some moralists, however, dissent from this view, and hold that the harm done is small. They argue that the loss of good name with one prudent person (exception being made for the cases when he is the one person whose esteem is prized above that of all others, or when the crime revealed is an enormous or very degrading one) is not a great blow to reputation, since reputation consists in the opinion of many persons, and since a prudent man will be inclined to help rather than harm one who has been defamed in his presence. The advocates of the first opinion appeal also to the analogy of contumely and rash judgment, for these two sins are grave, even when the loss of honor or good opinion is in respect to one person only. But their adversaries deny the assumed parity: for, while contumely includes the purpose to injure and rash judgment includes the imputation to another of a defect of which he is not guilty or not known to be guilty, the detraction now considered is innocent both of design to injure and of calumny. Both opinions are probable, but the former seems to be more common and more likely.
2066. Belittling a Person to Himself.--It is not impossible to belittle a person to himself, for example, to make him believe that lie is illegitimate, that he is regarded with contempt by others, that his ability is mediocre or his character defective, etc. Is this defamation, or is it sinful?
(a) To lower a person in his own estimation is not defamation in the strict sense of the word, since defamation is properly an injury to the reputation that one has with one’s neighbors or with the public, not to the opinion one has of oneself. This sin belongs rather to derision (see 2106).
(b) To lower a person in his own eyes is sinful or not sinful according to the purpose intended or the means employed. Thus, if a parent, wishing to correct the pride or presumption of his son, gives the latter a true picture of his failings or limitations, the act is one of virtuous correction. But if an envious person, wishing to produce a sense of inferiority in another, deprives the latter of rightful peace of mind and of reasonable confidence in self, charity and justice are violated and there is a duty of restitution.
2067. Disclosing Matters Detrimental to Third Party.--In what cases is it lawful to disclose to others matters that will be detrimental to the reputation of a third party?
(a) If the communication is false, it is never lawful, no matter how important the reason; for the end does not justify the means. It is sinful, therefore, to resort to calumny as a defense of one’s own reputation or dignity (see 2035, 2036).
(b) If the communication is truthful and the matter is already well known to the persons addressed, there is no defamation, unless the communication makes these persons strongly convinced, whereas they had been rather uncertain before, or reveals to them some important detail about which they had been in ignorance.
(c) If the communication is truthful, but the defects are secret and unknown to the parties addressed, there is defamation, unless the person whose defects are revealed has lost his right to good name on account of the right of another person which has precedence and cannot otherwise be upheld (cfr. 2035). In this latter case there is no obligation to maintain silence, neither from justice (since the lesser right must yield to the greater right) nor from charity (since this virtue does not oblige at the cost of great inconvenience). Thus, Our Lord made known to the Apostles that the Pharisees were hypocrites (Luke, xii, 1; Matt., xvi. 6), and St. Paul told Timothy that Alexander and Hymeneus had neither faith nor a good conscience (I Tim., i. 20).
2068. Rights that Have Precedence over a False Reputation.--(a) The public good is to be preferred to a false reputation, for the public welfare is the ground for the right to such reputation, the subject himself being unworthy of the good name he bears (see 2037). It is right, therefore, to denounce criminals or conspirators to the proper authorities, or to testify against them. Employers have the duty to discuss together the failings or imperfections of their employees that interfere with the business; subjects should manifest abuses about which they are asked in a canonical visitation; students in a college should give information about companions who are depraving the morals of the student body or exercising an evil influence on the other residents, etc.
(b) The private good of innocent parties may be preferred to the fame of one who enjoys a false reputation. One may reveal secret defects for one’s own defense; for example, a person whose life, honor or property is being unjustly attacked may reveal sins of the guilty in order to deter them or weaken their authority; a person who has been injured by his superior or another party may speak of this to a friend for the sake of obtaining consolation, or to a confessor, a lawyer or other adviser for the sake of obtaining counsel or assistance. One may also reveal secret defects for the protection of others; for example, one should put unsuspecting persons on their guard against seducers, impostors, quacks; one should reveal impediments that stand in the way of a marriage, or should warn a young woman that the man to whom she is engaged is a criminal or diseased; one should make known the true author of a crime for which an innocent person is about to suffer; one should tell the truth to inquirers about the incompetency of servants or other persons whom one has employed.
(c) The higher good of the person whose faults are revealed may also be preferred to the lower good of his false reputation; for it is to his interest that his higher good be promoted, even at the expense of an inferior good. It is lawful to tell parents about the misdeeds of their children (e.g., that a daughter is involved in a scandalous liaison), in order that the latter may be corrected; or to speak to the friends of wayward persons about the misconduct of the latter in order that prayers may be said for their conversion.
2069. Unlawful Attack on Another’s False Reputation.--If the false reputation of another is not the unjust cause of a loss that is feared, it is not right to deprive him of his good name. Examples: (a) It is not lawful to accuse a person who is about to be promoted to some office or dignity of which he is worthy, if the motive of the accusation is to secure the honor for oneself or one’s friend; otherwise ambitious persons would be encouraged to practise spying, manufacturing of evidence, etc., and the public peace would be greatly disturbed. (b) It is not lawful to accuse a person who is giving one no offense, if the motive of the accusation is to distract attention from oneself or to make oneself shine by the comparison.
2070. Conditions that Justify Revelation of Another’s Defects.--In revealing defects on account of some necessary good, one must observe the conditions for an act of double result (see 103).
(a) Thus, the action itself must not be evil, and hence one may not break the seal of secrecy to which one is bound (as will be said in the next Article in discussing violations of secrets), nor make use of knowledge unjustly acquired, nor reveal more or to more persons than the case demands, nor reveal anything, if a warning to the offender will suffice (see 1286).
(b) The good result must be intended, and the evil result of detriment to fame must be only permitted. Those who assign pious motives (pity, zeal, sincerity) for talk against a neighbor, but who are really actuated by hatred, revenge, ambition to defeat a rival, or other like passion, sin on account of their wrong intention. A hypocritical form of defamation is practised by some persons exteriorly devout, who under the pretext of asking prayers for their neighbor’s conversion spread stories about those whom they dislike.
(c) The reason for permitting the evil must be sufficiently weighty. Hence, the good result intended must be one that is likely to follow on the revelation, and it must be of some importance; for it would be cruel to throw away a neighbor’s good name on the mere possibility that a considerable good would be secured, or on the certainty that only a slight benefit would be obtained. It does seem, however, that the good which is hoped for must be of an equal dignity with the good of fame, since the innocent and the guilty party are not on the same footing, and furthermore all admit, for example, that the fame of an employee who is stealing from his employer is not to be preferred to the goods of the employer. In doubt about the seriousness of the evil following on revelation, the innocent party is to be favored.
2071. Revelations about Public Officials or Candidates for Public Office.--(a) These are lawful when the public good calls for them (e.g., when a man has used corrupt practices in order to be elected, or when he is incompetent, or when he has been guilty of malfeasance in office), and the conditions of the previous paragraph are observed.
(b) These revelations are unlawful when the public good suffers from them (e.g., when the safety or dignity of society itself would be injured by attacks on the head of government), or when the due conditions are not observed (e.g., when one resorts to personalities about a deserving public official, or practises muckraking because of mere prejudice or partisanship). The law permits fair comment on public persons or works, but it also grants an action for criticism that contains unfair aspersions of personal character or unjust accusations about public conduct.
2072. Revelations about Historical Personages.--(a) These revelations are not lawful unless there is a proportionate reason that justifies them. For historians there are sufficient reasons to narrate impartially the crimes as well as the virtues of those who appear in their pages. These reasons are: the nature of history as a record of facts and causes (“the first law of history is that it dare not tell any untruth, that it fear not to tell any truth,” Leo XIII); the rights of the persons who are treated in the annals (e.g., it is often impossible to understand the deeds of one character in history or to do him justice unless the secret crime of another character is revealed); the rights of the readers (e.g., the reader has the right to know that the persecutors of religion have been wicked in their personal lives). The historian, therefore, may search for material bearing on the lives and deeds of historical personages of the past, he may collect similar material relating to current events, he may narrate defects or delinquencies of the past that were unknown or forgotten. But matters of a purely private character that have no bearing on public events do not belong, according to some moralists, to the legitimate province of the historian; for otherwise there would be an end to the rights of the dead over their fame. Moreover, there is the risk of calumny and of violation of elementary justice, since the historian is a self-appointed judge and the person condemned is not able to defend himself.
(b) These historical revelations are not lawful unless the conditions mentioned in 2070 are observed. Thus, a historian should not write down details that were told him in confidence by a person long since dead; he should not be swayed either by unreasonable likes or unreasonable dislikes in the expression of his views; he should not publish what will cause harm rather than good, such as circumstances in the lives of persons recently deceased which, if revealed, will be detrimental to living persons.
2073. It is not always easy to determine whether more harm is likely to result if the persons whose glory is dimmed are high in public esteem on account of the prestige of their office or their great exploits. Much will depend on circumstances and on the author’s manner of treatment.
(a) Thus, per se, or from the nature of things, it does not cause greater harm to narrate truth about the imperfections of great men, for only error or prejudice or evil has reason to fear the truth. The inspired Scriptures themselves deal candidly with the public failings of personages who were high in religious or civil position, for example, the hesitation of Moses, the infidelity of Aaron, the fall of King David, the disobedience of the prophet Jonas, the denials of Peter, the doubts of Thomas, the treason of Judas. These histories are not harmful, but, on the contrary, contain most useful lessons of instruction, warning and direction.
(b) Per accidens, or on account of special conditions, it may be more harmful to write of the failings of the great (cfr. 1001). Thus, the class of persons for whom one is writing may be immature (e.g., a textbook of history for children would give scandal if it spoke openly of sexual crimes), the conditions of the time may be unfavorable (e.g., a new historical production might lead to injury to some class of persons at a time of great prejudice against them), the total effect of a book may be bad (e.g., chronicles of scandals, historical biographies or novels or plays written in a seductive manner). The class of modern writers known as “debunkers,” whose aim it is to destroy all hero-worship, offend against truth and ideals by the prominence they give to evil, while the so-called psychological historians are frequently purely subjective as well as immoral.
2074. Revelations about Persons Who Figure in the News of the Day.--(a) If the matters revealed are of a public nature, the lawfulness or unlawfulness of the revelation will depend on the reasons for it and the manner in which it is given. In discussing political affairs, a newspaper has the right to call attention to mistakes and faults of public men, since the freedom of the press in this respect is a protection to liberty and to progress, and those who enter public life implicitly consent to criticism of their conduct; in reporting the news, a newspaper has the right to speak of murders, robberies and other public crimes that have been committed, since the common good requires that the authors of public offenses be known as such. But if this kind of news is disserviceable in any instance to the order, peace or dignity of the community, or if the news is obtained in unjust or dishonorable ways, or if the motive is merely to gratify curiosity, to indulge prejudice, or to make money, the newspaper management is morally guilty, even though it may be legally within its right. Yellow journalism and “tabloidism” are reprehensible because they are injurious to the minds and morals of their readers on account of the undue prominence given to crime, even of the most disgusting sort, and the appeal made to sense and emotion rather than to thought.
(b) It the matters revealed are of a private nature, the morality of the revelation has to be judged by the principles given in 2067 sqq. It would be wrong to make a practice of spying into the private life and affairs even of public persons merely to add interest to one’s columns; but if there is some really important advantage to the public or to a private person that will be served, and if the other conditions are observed (see 2070), one may publish even private defects that are real and certain.
2075. Injustice in Professional Critics.--(a) Injustice is done by professional critics (such as book reviewers, dramatic and art critics, and the like) to the persons who rely upon their opinion, if there is a compact with them to give a competent and unbiased judgment and the compact is not lived up to by the critic with resultant damage to the client (see 1793). If there is no compact, the critic is nevertheless guilty of deception and uncharitableness, if he performs his office carelessly (e.g., by eulogizing a worthless book or play or picture).
(b) Injustice is done the person criticized, if his work is undervalued purposely (e.g., because the critic is jealous, or in an ill humor or is hired by others to dispraise), or if uncalled-for personalities are indulged in at the expense of the person’s fame. A carping critic may by the stroke of the pen spoil the work of years, and hence ignorance does not excuse those censors who practise wholesale and unfair denunciations (see 905).
2076. Cooperation in Defamation.--Not only the defamer sins, but also those who cooperate with him. Among the cooperators with defamation are those who give orders for defamation, those who show how it can be done, those who protect defamers, and those who participate in defamation by directing the conversation to a certain subject or by joining in the criticisms. The most ordinary form of participation in defamation is that of the listener, for no one defames successfully unless he has a sympathetic listener. Those who listen to detraction in such a way as to consent to what is said share in the guilt of the detraction. This happens as follows:
(a) the listener consents directly to defamation when he spurs the speaker on (e.g., by saying, “Tell us about So-and-So,” by insincerely praising an absent person in order to excite dispraise, by nodding approvingly, cheering, or smiling, by showing great marks of favor to those who bring him news against others or of disfavor to those who refuse to do this), or when he rejoices internally at the defamation he hears, because he hates the victim:
(b) the listener consents indirectly to defamation when he does not spur the speaker on nor approve of what is said, but omits to stop the defamation or to protest against it, when he could and should do one or the other of these things.
2077. Sinfulness of Direct Consent to Defamation.--The listener who consents directly shares in the guilt of the defamer according to the words of St. Paul: “They who do such things (detractors, etc.) are worthy of death, and not only they that do them, but they also that consent to them that do them” (Rom., i. 32), Indeed, St. Bernard says that it is not easy to say which is more deserving of condemnation, to defame or to listen to defamation. But we may distinguish as follows:
(a) he who spurs the defamer on is more guilty than the defamer. This listener sins against the detractor whom he scandalizes by inducing to sin, against the detracted whom he deprives of his good name. Thus, he is both uncharitable to the detractor and unjust to the detracted, and is the moving cause of all the harm that is done (cfr. 2065);
(b) he who hears the defamer willingly may be more guilty internally than the defamer, since his hatred of his neighbor and his love of injustice may be more intense; but externally his sin is less, since, as is supposed, he is not bound to resist the defamation and he does not give any cooperation to the external injustice. He sins against justice affectively (i.e., in wish), but not effectively (i.e., in word or deed).
2078. Persons Who Listen from Curiosity.--What of those listeners who hear defamation willingly, not because they approve of the harm or evil that is being done, but because they are unusually curious or the speaker is unusually interesting?
(a) If these listeners could and should stop the defamation, they consent to it indirectly by their silence and thus are guilty (cfr. 2079).
(b) If these listeners are not able or are not bound to stop the defamation, some would nevertheless hold them guilty of grave sin, since they wish to hear something only because the knowledge will give them pleasure, knowing all the while that this knowledge cannot be had except at the expense of the good opinion they have of a neighbor. But the general view is that in this case there is no grave sin; for the listener does not approve of the moral evil (he is interested only in the graceful or eloquent or witty manner of the speaker, or the strangeness of the things related, or he is only concerned to hear the latest news, cfr. 234), and what he hears does not cause the lowering of his neighbor in his own opinion. But here it is supposed that the listener in no way encourages the defamation and that he is not bound to stop it. Curiosity about things that do not concern one is, however, a venial sin.
2079. Sinfulness of Indirect Consent to Defamation.--The listener who consents indirectly to defamation by not impeding it as he should is also guilty of sin, and in Scripture his conduct is strongly forbidden: “Have nothing to do with detractors” (Prov., xxiv. 21); “Hedge in thy ears with thorns, hear not a wicked tongue” (Ecclus., xxviii. 28).
(a) It is commonly admitted that the listener in question sins doubly against charity, and grievously if the defamation is seriously harmful; for he sins against the detractor by refusing to give a brotherly correction (see 1258 sqq.), and he sins also against the one detracted by refusing to raise his voice in behalf of the absent who cannot defend himself.
(b) It is also commonly admitted that, if the listener is the superior of the defamer or of the person defamed, he sins more gravely, since he is specially bound to correct his subject who is detracting in his presence, or to defend his absent subject who is being defamed. If the listener is a private person not responsible for the defamed person’s reputation, he does not sin against justice by his indirect consent to the defamation. Indeed, the inferiors or equals of the defamer rarely sin gravely by their neglecting to oppose his defamatory remarks.
2080. Guilt of Superior Who Consents to Defamation.--Is the superior who indirectly consents to defamation of a non-subject by a subject guilty thereby of injustice?
(a) As regards the spiritual injury (i.e., the guilt of sin incurred by the defamer), the superior is guilty of injustice towards his subject, if by reason of his office or contract he is bound to correct faults and neglects to do so. Thus, a bishop or pastor is supported by his people, and there is at least an implied agreement that he will direct them in spiritual matters and reprove their faults. Hence, it seems that a spiritual superior of this kind is unjust, if he fails to correct a subordinate who carries defamatory tales to his ears.
(b) As regards the temporary injury (i.e., the detriment to fame incurred by the person maligned), all depends on whether the superior is bound by reason of his office or contract to prevent injury to non-subjects by those who are his subjects. If the superior exercises his authority in the temporal order and has an agreement with those not subject to him to protect them against defamation by his subjects, he is bound in justice to abide by his agreement. But the common opinion is that a superior in the spiritual order is not responsible ex officio for the fame or other temporal welfare of those not subject to him.
2081. Is the superior who indirectly consents to defamation of a subject guilty thereby of injustice?
(a) If the superior has authority in the temporal order, he is unjust by his inaction, in so far as law, custom or agreement hold him to prevent the defamation of his subject. Thus, a guardian entrusted with the care of his ward’s reputation is unjust if he makes no effort to prevent defamation of the latter.
(b) If the superior is in the spiritual order, some believe that he is unjust by inaction, since fame is closely connected with spiritual goods, being necessary for moral influence over others and useful for personal perseverance in virtue. But others--and it seems more commonly--deny this, and state that the relation between fame and spiritual goods is only accidental.
2082. Circumstances Which Lessen Guilt of Indirect Consent.--Indirect consent to defamation is often only a venial sin. (a) Thus, by reason of the lightness of the matter, as when only trivial defects are mentioned by the defamer; (b) by reason of insufficient reflection, as when the listener is distracted in mind and does not clearly advert to the sinfulness of the words he hears; (c) by reason of insufficient consent, as when the failure to stop or protest against the defamation is due to slight laziness, to bashfulness, or to fear of the speaker, at least when the defamation is not extremely harmful to fame or other good, or gravely slanderous.
2083. Inaction in the Face of Defamation.--Inaction in the face of defamation of a third party is sometimes no sin at all.
(a) Thus, there is no sin when one is unable to act (e.g., when a slanderous speech is being delivered by a person in authority who will not suffer any interruption to be made), or is unable to act with any success (e.g., when the attempt to correct would provoke worse defamation, when the listener is too unskilled to refute or remonstrate). Scrupulous persons should not attempt to correct, since they are not suited for this. Their attempts to defend an absent person would generally make them ridiculous, and would often be unjust to the person whom they suspected of defamation.
(b) There is no sin when one is not obliged to act (e.g., when interference will expose one to very serious evils, when the defamation is not grave or is not taken very seriously, when the listener is uncertain whether the speaker is really guilty of defamation or whether he himself is bound to intervene). It is sometimes unwise to interrupt a defamatory story, for many such story seems to promise dire disclosures at its beginning, but when heard to the end is seen to be an affair of no importance or to contain little that is new or startling or credible.
2084. Ways of Opposing Defamation Made in One’s Presence.--(a) Positive resistance is made by a command to the defamer to be silent, or by refutation of his words if they are false, or by a rebuke if his words are true. This mode of correction is generally required if the listener is the superior of the defamer, and is sometimes suitable if he is the latter’s equal.
(b) Negative resistance is made by leaving the company, by having no share in the conversation, by changing the subject, by showing displeasure or at least gravity in one’s looks or acts: “The north wind driveth away rain, as doth a sad countenance a backbiting tongue” (Prov., xxv. 23). This mode of resistance is usually the proper one for an inferior, and as a rule is found more satisfactory even between equals (see 1267).
2085. Restitution for Defamation.--Restitution for injuries committed is necessary (see 1759), and hence it is required of the defamer. In the language of Scripture (Prov., xiii. 13), he that speaks ill of his neighbor obliges himself for the future. The two injuries to be repaired are: (a) the unjust taking, that is, the fame of which he has deprived his neighbor; (b) the unjust damage, that is, the detriment to fame or the losses that resulted from the defamation (such as failure to obtain or keep a position, decline of business, etc., which were foreseen at least in a confused manner). It is clear there is no duty of restitution, if in spite of talk against a neighbor he suffered no loss (e.g., if the listeners gave no heed or credence to the talk).
2086. Gravity of Obligation of Restitution.--The obligation of restitution for defamation is grave or light according to the degree of injury done, and the grave obligation binds even at the expense of serious inconvenience, the light obligation at the cost of small inconvenience. But the following points should be noted:
(a) the injury is not necessarily grave if the defect imputed to another is grave, for many circumstances have to be considered (e.g., blasphemy is a serious charge, but it would not be very harmful to a man publicly known as very impious, see 2053 sqq.);
(b) the injury is not necessarily slight if the defect imputed is slight, for circumstances may make the injury considerable (e.g., it is not very defamatory to say that a woman is very talkative, or unable to speak or spell correctly, but this would be very damaging if it lost the woman a very lucrative position as secretary).
2087. Conditions Which Entail Duty of Restitution.--Restitution is not obligatory unless one is the unjust and efficacious author of the damage (see 1763). Hence, disclosures unfavorable to the reputation of others entail the duty of restitution only when the following conditions are present:
(a) the detriment to fame or other loss must be unjust objectively, and hence those who have a just reason for exposing the vices of others are not held to restitution;
(b) the detriment must be unjust subjectively, and hence one who in good faith speaks of a neighbors sin, thinking that it is true and public, whereas it is false or secret, is not bound to restitution, if he discovers his error after the results of the defamation have been removed (see, however, 2102). But if he discovers his mistake while the neighbor is still under a cloud because of the report, he becomes from that moment responsible and subjectively unjust, if he does not take steps as far as he conveniently can to correct the error (see 1769);
(c) the detriment must be due to oue’s act as to its efficacious cause, and hence one is not bound to restitution if a listener understands one to disparage when in fact one has not disparaged.
2088. Cooperators and Restitution.--Those who cooperate in injustice are also held to restitution (see 1778 sqq.), and hence the following are bound to indemnify a defamed person:
(a) positive cooperators are held to restitution, such as those who command, counsel, or encourage defamation. The same is true of those who share in a defamatory conversation or who merely listen, but by their questions, or show of interest or approval, induce the defamer to continue, or to speak with more assurance;
(b) negative cooperators are also held to restitution, if they were bound in justice to resist or impede defamation. This will apply chiefly to a superior who does not prevent, as he should, the defamation of his subject or community, whether by a subject or a non-subject (see 2080 sqq.).
2089. Circumstances of Restitution.--We shall now speak of the circumstances of restitution for defamation: (a) the persons bound to restitution besides the defamer, namely, his heirs, the listeners, etc.; (b) the persons to whom restitution is to be made; (c) the manner of making restitution; (d) the time for making restitution (see 1781 sqq.).
2090. Restitution for Defamation to Be Made by an Heir of the Defamer.--(a) For the injury to fame, it seems that the heir is not bound, since the duty of restitution of fame is a personal one, that is, an obligation to perform an act of retraction or apology, not an obligation to pay compensation (see 463). But some hold that defamation may be satisfied for by pecuniary compensation (1750, 1802), and that, if the injured party should insist on this kind of compensation for the infamy suffered, the heirs would be obliged to pay it.
(b) For the damages resulting from injury to fame the heir is bound, since restitution for losses is a real one and rests upon the property or estate of the deceased. But those who are in good faith are sometimes to be left undisturbed, lest they become guilty of formal sin.
2091. The Persons to Whom Restitution for Defamation Is to Be Made.--(a) To the person defamed restitution of fame is owed, and this is true even when the person is already dead. Just as one who dishonors the dead by desecrating their tombs or their remains owes it to their memory to make reparation, so one who defames the dead owes it to their reputation to make restitution. In fact, the heirs may be bound in conscience to insist upon this restitution, and it seems they cannot condone it, since it is not their own fame that has been hurt.
(b) To the listeners restitution is not owed, since no injustice was done them, but reparation for scandal given them may be obligatory. And, since justice to the person defamed requires retraction or other reparation, the defamer must recall his words before the persons to whom he addressed them. Hence, if defamation appeared in a journal, the honorable reparation should also appear in the same journal and with the same prominence given it as was given the offensive remarks.
2092. Responsibility of Defamer for Spread of Defamation.--Is the defamer bound to recall his words to the wider audience that learned them from his first listeners?
(a) If the defamer is not responsible for the spread of his talk beyond the circle which he addressed (e.g., if he imposed strict silence upon his listeners or had good reason to think that they would keep his remarks to themselves, and his words nevertheless leaked out), the common opinion is that he is not held to reparation before the subsequent listeners.
(b) If the defamer is responsible for the spread of his talk (e.g., if he gave his listeners permission to quote or repeat, or if he knew well that they would carry his words far and wide), he is bound to reparation before the later listeners, in so far as this is possible, especially if he was guilty of calumny. Whether he or his listeners have the first duty of restitution will depend on the relationship in their cooperation (see 1784). If he can do nothing better, he should admonish his listeners to retract before their listeners.
2093. The First Way of Making Restitution for Defamation.--(a) If the defamation was by calumny, the defamer (and also the propagator) must take back his words, admitting that what he said was untrue. If necessary, he should also make affidavit to this effect, or even admit that he lied. The reason is that the innocent party has a greater right to his fame than the guilty party. But the defamer is not obliged to confess his own malice, when this is not necessary, and it may suffice to say merely that his former statement was not correct.
(b) If the defamation was by detraction, the defamer cannot truthfully say that his words were false, and he must counteract directly or indirectly the effect of his defamation by something favorable to the person he has injured. If the listeners will not be confirmed in their belief by his explanation, the defamer should explain to them that his statements were unjust, that he had no right to make them, that he wishes them to regard as unsaid all that he said, etc. (direct revocation). If this cure would be worse than the sickness by strengthening the belief of the listeners that the defamation was true, the defamer should be silent about his former statements. But he should so honor or praise the person defamed that others will be led to believe, not that restitution is being made, but that the former good opinion they had of the person defamed was correct (indirect revocation). Thus, if the defamer knows that the injured person has reformed, he may call attention to and emphasize the virtues he now has; if the defamed person has still the same failing, he may be excused, when possible, or praised for the good qualities he does possess, or he may be spoken of in general terms of esteem; if the listeners have been led to dishonor the person who was detracted, the defamer may show special signs of esteem or confidence to the latter, etc.
2094. Other Methods of Making Restitution.--If the listeners will not be impressed by any of the methods of satisfaction just indicated, what should be done?
(a) If, in the case of calumny, the listeners are unwilling to accept the formal statement that the defamation was untrue, the defamer is obliged to nothing more. For the slanderer has done all that is possible to change the erroneous view of the listeners, and the bad opinion they have of their neighbor must now be attributed, not to the defamer, but to their own wickedness or stubbornness.
(b) If the listeners cannot be properly impressed by the direct or indirect revocation of detraction, the defamer, being unable to make honorable compensation by restoration of fame, should make a profitable compensation by the bestowal of a benefit that will in some way be commensurate with the good of reputation and be acceptable to the other party. Thus, if the person defamed is satisfied with money or something measurable in terms of money, he should be given damages; if this kind of compensation is of little use or is not esteemed (few persons of honor would take money alone as pay for a lost reputation), he should be given some other good which in his own judgment and that of a prudent man is more nearly an equivalent for the good of which he has been deprived. An apology is not sufficient, since the begging of pardon does not restore what was taken; neither is it generally advisable, because the admission to another that one has been secretly defaming him and is now sorry for this may lead to quarrels and hatreds rather than to forgiveness and peace.
2095. Legal Reparation for Defamation.--One who has been sentenced by a lawful judgment of court to reparation and penalty for defamation is obliged to obedience, but if the satisfaction decided on by a jury is excessive or meager, it can be set aside by the court. In Canon Law (Canon 2355) one who has been convicted of defamation may be sentenced: (a) to satisfaction; (b) to damages; (c) to suitable penalties, even to suspension or removal from office or benefice.
2096. The Time When Restitution for Defamation Is to Be Made.--(a) It should be made as soon as possible, for the longer it is delayed the greater the injury that is suffered, since defamation becomes harder to correct as it progresses, or at least has a longer life when it is not corrected early. But prudence will sometimes dictate that one await a psychological or favorable moment for a retractation. (b) Restitution should be promised before absolution is given, and, if there is a well-founded doubt about the sincerity of a promise, the confessor may delay absolution until restitution has been made.
2097. Cessation of Duty of Restitution.--The duty of restitution ceases, at least temporarily, in certain cases (see 1797 sqq.), and hence one who has been guilty of injustice through defamation is sometimes excused from reparation. (a) Thus, one is excused temporarily on account of impossibility; (b) one is excused permanently on account of the cessation of the other party’s good name or the termination of one’s own obligation.
2098. Excuse from Restitution on Account of Impossibility.--(a) Physical impossibility excuses, for example, when one does not know who the persons were before whom one detracted, or cannot recall who the person was whom one defamed. But in this case the defamer should at least make satisfaction by praying for the person whom he defamed, or by having Masses offered for him.
(b) Moral impossibility excuses from restitution, as when the defamer will suffer a far greater loss than he inflicted on the person defamed (e.g., if the defamer cannot retract without losing his life, or a reputation which is far more valuable than that of the obscure person who was defamed). But if the defamer has subjected the injured party to the peril of death, or if he has calumniated an innocent man, he must make satisfaction even at the peril of his own life or at the cost of his own fame; for the right of the innocent prevails over that of the guilty defamer.
2099. Excuse from Restitution on Account of Cessation of Other Party’s Good Name.--The defamer may also be excused from restitution on account of cessation of the other party’s good name through another cause, as when the secret defect first made known by the defamer becomes public from another source.
(a) The detractor is excused from the duty of restoring reputation, since the person he defamed has now independently of the first defamation lost his right to reputation (see 2053 sqq.).
(b) The detractor is not excused, however, from payment for damages which the defamed person suffered from the first defamation or for expenses which it caused him. Some moralists hold him obligated also for some compensation for the infamy suffered before the crime became public through others.
2100. Excuse from Restitution on Account of the Termination of Obligation.--(a) The act of the defamed person ends the obligation, when, without injury to others, he expressly or tacitly condones the offense; for he has dominion over his own fame, as he has over his own money or lands. Thus, it may often be presumed that parents overlook the restitution owed them by their children for criticisms made by the latter.