Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

Right, according to the etymology of the name, is so called either because it is close at hand, as Covarruvias wills, book 1 of his Commentary on Civil Law; for "iusta" sometimes signifies a likeness or equality in some office or action; or "ius" is said from "iubendo" (commanding), for "iussum" is the participle of the verb "iubeo" (I command); hence if from the participle "iussum" the second syllable be taken away, there remains the word "ius"; or if you pronounce two syllables separately, it will signify that "iussum", that is, command itself, is itself right — "ius sum", I am right; or lastly "ius" is derived from "iustitia" (justice), for, as Ulpian said in book 1, folio De iustitia et iure, "but right is so called from justice." For although justice rather seems to be derived from right than right from justice — for that is called just which accords with right, whence also justice is defined through right, because it renders to each one his own — nevertheless the appellation of right, of which the jurist speaks, could have arisen from justice: just as laughter is so called because it tends toward the object of laughter, although the visible object is denominated visible by that very sight. From this indeed "ius" could easily be derived, namely by taking away the last part of the word "iustum". And Saint Augustine approved this etymology in book 10 of De Civitate Dei, chapter 21, where he assumes it as a philosophical principle: "They say that to be right which flows from the fountain of justice." And in Psalm 145 he says: "Right and wrong are contraries, for right is what is just." Isidore likewise proved the same in book 5 of his Etymologies, chapter 3, saying: "Right is said of itself because it is just." Therefore, as "just" is denominated from justice, so "right" could be named from the just, and from justice, as far as the etymology of the word goes.

Note 2. The name of right, according to the thing itself, can be taken three ways. First, indeed, so that it be the same as the just. Now the just is taken in two ways according to Aristotle in book 5 of the Ethics, chapter 1, namely generically and in a wider signification for the lawful, and thus every work of virtue, insofar as it accords with the law, is called right and just; and particularly and more strictly for that which is regular and owed to another. For the just, strictly taken, involves these three things, namely equality, debt, and being directed toward another. Second, so that it be the same as law, which is the rule of the just; and since the sentence of a judge is likewise a kind of law, not public but private, it is also called right, on which account a judge is said to declare right and to preside over the declaring of right. Third, right is taken for legitimate power to obtain some thing, or to exercise some function or quasi-function, whose derogation and violation constitutes and effects injury.

Note 3. Right taken for the special just, that is, for that which is regular and owed to another, is the formal object of particular justice, because he is called just in a special manner who loves, intends, and preserves this due equality, while he is unjust who does not preserve it; whereupon this equality, insofar as it is owed, constitutes the formal object of particular justice; for the formal object of every virtue is that honest good which is intended in act through that virtue.

Now right taken in the second way, namely for law, is the rule of justice and of the other virtues; for virtues ought to be directed in their acts according to the dictate and precept of the laws; indeed if they are not conformed to the laws they will not be diligent nor praiseworthy. But insofar as right is employed for legitimate power, it is not indeed the object which justice intends but the formal object in respect of whom: for in justice, as in every virtue which is directed toward another, can be distinguished the object which and the object in respect of whom. The first is what the virtue itself intends and renders outwardly, and this in our case is the rendering of an equal thing insofar as it is owed, or the rendering of what is owed unto the equality of another's right; and such a thing owed cannot exist without a right in the other, for they are correlatives; for the owed is what is owed to a right; whereupon the object of justice includes an order to the right of another. The second, namely the object in respect of whom of justice, is he to whom the debt is rendered; and he is our neighbor insofar as he has a right to something by reason of which that thing is owed to him; for from his right in me or in mine is born in me the duty of rendering that which fulfills and exhausts that right; and that this may be done duly, justice inclines me to will it in affection and render it in effect.

These things having been premised, two things remain here to be opened up: First, what is the legitimate definition of right viewed universally. Second, how manifold is its distribution and division into various species and parts.

First Conclusion. — RIGHT VIEWED GENERALLY IS CORRECTLY SAID TO BE LEGITIMATE POWER TO OBTAIN SOME THING, OR TO EXERCISE SOME FUNCTION OR QUASI-FUNCTION, WHOSE VIOLATION CONSTITUTES INJURY.

First it is said power, that is, a certain aptitude toward something, whence we say something can be done; on which account we read in Genesis 23 that Abraham said to the sons of Heth: Give me the right of a sepulchre, that is, the faculty of burying. Now this power stands either by mode of active potency, as when there is a right to do or retain something; or by mode of passive potency, as in the right which you have to be nourished by your parents, guarded by rulers, served by servants; or by mode of a resisting potency, as in the right which anyone has that another not build in such a place, not raise a wall higher by constructing it, inasmuch as it would not obstruct sight nor light.

Second, legitimate, that is, granted by law; for a faculty which is not according to law is not a right but force and injury. Now the law granting this power is either divine positive, for example, to receive the sacraments; or natural, for example, to use the members for sustaining life by food and drink, to repel force with force; or lastly it is human, for example, to succession of inheritance, to acquiring, possessing, retaining, and alienating through various kinds of contracts; and there are as many kinds of rights as there are kinds of laws which grant right. From which it follows that this power is not something physical but only moral, belonging to man by some ordination, deputation, or concession of God or of men.

Third, to some thing, as to obtain some thing through hereditary succession, through testament, through liberal donation, through contracts, through occupation.

Fourth, to a function, as to the free use of one's members and goods and things specially pertaining to oneself; or quasi-function, for example, to civil and natural possession, to retain dominion, state, and condition in which one is. — Fifthly, finally, there is added, whose violation constitutes injury; because injury is nothing else than violation of another's right, which indeed occurs when, the right remaining intact, one acts against it. Hence when someone is deprived of an office removable at the will of a superior, no injury is done him unless elsewhere he have another right to exercising that office; for there can be a right to a right, and a dominion of right.

From these points gather that right is sometimes distinguished from equity and from good in many respects, as Louis Vives reports in his scholion on lib. 2. De Civit. Dei, cap. 17. Hence Aristotle, 5. Ethics, c. 10, says that equity is an emendation of the just: not indeed insofar as the just is taken for natural debt, which is right according to natural reason; for this nowhere fails if reason does not err; nor even insofar as the just is taken for legal justice, namely that which is established by human law: for although this sometimes fails, yet that failure proceeds not from the law, or from the legislator, but from the matter itself. Therefore, taking equity in either of these ways, it is not an emendation of right, but rather its origin and rule, according to that saying, l. 91. f. de regul. iur.: In all things, but especially in law, equity must be regarded: and so equity is said to be an emendation of the just insofar as equity is taken for a prudent moderation of the written law beyond the force of its words, as Suarez says, book 1, chapter 2; and thus equity is said to be opposed to strict right, for which reason Terentianus said: Between right and equity there is this difference, that right is what demands all things straight and inflexible, while equity is what remits much of the law. And it is with legal right that epieikeia is concerned; since it pertains to the judgment of a prudent man to interpret the words of human law when its exact observance would press against natural equity. For this reason a judge, or prince, interpreting the law thus, is said to act not by right, materially indeed and as the words of the law sound, but to act from equity and good. And therefore perhaps jurisprudence was called the art of the good and the equitable, because in interpreting laws one must always have regard to the good and the equitable, even though at times it may be necessary to temper the force and tenor of the words of the law, lest one depart from natural equity and good.

Second Conclusion. — RIGHT TAKEN GENERALLY CAN BE DIVIDED FIRST INTO NATURAL RIGHT, THE RIGHT OF NATIONS, AND POSITIVE RIGHT.

Natural right, the Doctor says in 1. d. 17. q. 1. n. 3, is that whose truth is known from the terms; for, he says, such is a principle in the law of nature just as in speculative matters a principle is known from the terms, or what follows evidently from such a truth so known, of which kind is a demonstrated practical conclusion; and, strictly speaking, nothing else belongs to the law of nature except a principle or a demonstrated conclusion: yet by extending the term it is sometimes said to be of the law of nature whatever practical truth is consonant with the principles and conclusions of the law of nature: to such a degree that it is immediately known to all that it accords with such a law. From these words the Doctor teaches two things: first, that to be of natural right is whatever has an honesty that appears from the terms; for instance, God is to be worshipped: or whose honesty is inferred from a principle that appears from the terms; for instance, Sacrifices are to be offered to God; which is inferred from that principle, God is to be worshipped. Second, that those things can be reckoned to be of natural right which are consonant with the principles and conclusions of that right itself. Hence in 3. d. 37. n. 5 he distinguishes a twofold natural right, namely strict and most strict. He says, he says, that some things can be said to be of the law of nature in a twofold way: in one way, as first practical principles, known from the terms: or as necessary conclusions following from them: and these are said to be most strictly of the law of nature. He adds at n. 8: In another way some things are said to be of the law of nature because they are greatly consonant with that law; although they do not follow necessarily from practical principles that are known from the terms, and are necessarily known to every intellect apprehending them. And in this way it is certain that all the precepts of the second table are of the law of nature, because their rectitude is highly consonant with the first practical principles that are necessarily known. By these words the Doctor clearly teaches that there pertain to the natural law not only general principles known through themselves concerning things naturally honest and necessary; or concerning things base and illicit, as that virtue is to be embraced, vice to be shunned, God to be worshipped, each one's right to be preserved, and that one is not to do to another what he would not have done to himself: but also particular precepts and conclusions deduced from the general principles concerning whatever things are naturally necessary for living honestly and peaceably in society, or concerning their opposites; for instance, that no one is to be killed unjustly, that one is not to steal, not to lend at usury, and the like; of which some are known through themselves by the natural light, others need some discourse or discipline in order to become known to men, especially the more unlearned. That all these belong to the natural law is evident, because from the very nature of the thing, and with any positive law set aside, they are morally necessary, and their contraries are illicit: wherefore St. Paul, ad Rom. 2, affirms that the nations, following the guidance of the natural light, do naturally the things that are of the law, and are a law to themselves, that is, their conscience bearing witness to them.

But in a twofold way, says Hugo Grotius, book 1 and chapter 1 of the book De iure belli et pacis, it is customary to prove that something belongs to natural right:

Now from what is prior, now from what is posterior; of these reasons of proof the former is subtler, the latter more popular. A priori, if there be shown a necessary congruence or incongruence of any thing with rational and social nature: a posteriori truly, if not with most certain faith, yet at least with considerable probability, that is gathered to be of natural right which among all nations, or the more civilized ones, is believed to be such. For a universal effect requires a universal cause: and scarcely any cause of such an opinion seems able to exist besides the very sense itself of what is called common.

Whence Hesiod: For not wholly vain is the sentiment many
Which the people celebrate. To this Seneca accords, ep. 117: An argument of truth, he says, is that something appear so to all. And Cicero, l. Tusc.: The consent of all nations in a matter is to be deemed the law of nature.

Nor is this hindered by the fact that there are certain nations of barbarous savagery, to whom what seems just and equitable to others does not appeal, because, as Andronicus Rhodius says, among men endowed with a right and sound mind that law of nature, so called, is immutable. But if to those who are of a morbid and distorted mind it seems otherwise, that has nothing to do with the matter. For neither does he lie who says honey is sweet because to the sick it appears otherwise. Aristotle accords, Politics 1: What is natural is to be examined in those things that are well disposed according to nature, not in the depraved.

Hence the Doctor concludes in 1., the aforesaid dist. 17, that Gratian does not speak rightly concerning the right of the law of nature, holding that those things which are in the Scripture of the Old or New Testament belong to the law of nature. Because neither are all those things practical principles known from the terms, nor demonstrated practical conclusions: nor even evidently consonant with such principles and conclusions. Therefore it must be excluded, when he extends natural right to positive right from the Author of nature, as distinguished against positive right from someone who is not the Author of nature.

That is called the right of nations which has been introduced by the usage of all or most nations; namely with natural reason preceding and dictating it as evidently fitting for the human race and society. By this right of nations was introduced the division of goods, the acquisition of dominion over things which belong to no one, through their occupation. To the same belongs the immunity of ambassadors, and all those matters which are treated in cap. Ius gentium dist. 1, although among these is reckoned the right of keeping treaties of peace, and several others that could more fittingly be referred to the law of nature. Nor is it wonderful that the nations conspired in this right as it were by unanimous consent: since they recognized it to be most conformable to natural reason: accordingly individual nations are bound by that right, inasmuch as each nation fixed it for itself whether by its own proper choice and the inclination of nature, or in imitation of other nations. Whence, just as it was introduced by the customs of individual nations, so could it, absolutely speaking, be abolished by each through contrary custom or express revocation, as the Church abolished the right of nations concerning servitude with respect to Christian slaves.

Positive right is that which is not instituted with nature teaching, but by the will of him who has the power of establishing and enacting it. It differs according to the different authority; for divine right is one thing, human another. Divine indeed is that which is sanctioned by divine will, which is wont to be distinguished in the usual twofold manner, namely Old divine right, which God enacted in the Old Testament concerning the rites, ceremonies, and polity of the Jews: and New, or Evangelical, such as all those precepts which were sanctioned in the New Testament either for forming morals uprightly or for administering the sacraments. Positive human right is that which was enacted by human authority, or by mere man; and this again is twofold: namely civil, by the authority of secular Princes; and Canonical, which was instituted by the authority of Pontiffs, or Councils.

Justinian, book 1 of the Institutes, title 2, is of the opinion that the civil law is distinguished from the law of nations in this:

that the law of nations must be judged not from the institutions of peoples, but from that which natural reason itself dictates to be just, that is, from the knowledge of the honorable and the base, of the just and the unjust, implanted in the minds of men. But the civil law is that which particular peoples or their rulers and princes establish for the right ordering of the Republic and for the proper good of their subjects and the common good of the Republic. The civil law, he says, is distinguished from the law of nations in that all peoples who are governed by laws and customs use partly their own proper law, partly the law common to all men: for what each people establishes as law for itself is proper to that state itself, and is called the civil law, as it were the proper law of that state itself. But what natural reason establishes among all men is observed equally among all peoples, and is called the law of nations, as it were the law which all peoples use. Yet certainly the more mature must be considered, for, as we said above, what is natural and consonant with right reason is to be looked for in those who are well disposed according to nature, not in the depraved, as Aristotle says, book 1 of the Politics, chapter 5.

Moreover, right is divided into right simply so called, and right secundum quid. The first is that which is found between persons altogether distinct, and of different order, such as the right between princes and subjects: the second is that which is found between persons not altogether distinct, but only secundum quid.

Again, right secundum quid is divided into paternal, economic, and masterly right. The first is between father and son; since indeed the son is a part of the paternal substance, they are not persons morally altogether distinct: nor can a perfect equality be established between them: seeing that a son cannot render an equivalent to his father: although nevertheless this right is called secundum quid, yet it is called right, insofar as right signifies a debt: for the son owes more to his father than to any other person: the same judgment holds of paternal right between God and men. Economic right is between wife and husband, who are reckoned even morally one person. Masterly right, finally, is between master and slave; he is his possession, and a certain animate instrument, says Aristotle; whence between them there is no right except secundum quid.

Moreover, right, on the part of the term which it regards, is divided into right to a thing, and right in a thing. Right to a thing, says Lessius, book 2, chapter 2, On Right in General, doubt 2, is called:

that which does not confer an action upon a thing, but only upon a person. Such is the right which accrues to you by stipulation, by donation, by purchase, or other contracts before the delivery of the thing; for if that thing be sold to another, and actually delivered to him, it remains his, nor can you claim it; because the thing was not obligated to you, but you have only a personal action against him who defrauded you: such also is the right which you have by election, petition, presentation to a benefice: indeed such even is that which you have by the collation of a benefice before acceptance, and by succession to an inheritance, before its acceptance. Right in a thing is called that which confers a real action, or which has a thing obligated to it. Such is that which is had by purchase and other contracts, the delivery of the thing following; by the collation of a benefice, acceptance following; by testament or succession ab intestato, acceptance following: such also is the right of dominion over a thing, and usufruct, that is, the right of using and of taking the fruits respectively in that which underlies those rights; likewise the rights which are called servitudes; also the right of hypothec and of pledge: finally every right which holds some thing bound to us, whether corporeal, as fields, houses, furniture; or incorporeal, as offices, benefices, revenues, servitudes, and the like, in such wise that from it we can receive fruits, or emoluments, or security for creditors, or honor, is called right in a thing. And wherever such a thing may pass, it can be claimed as bound to us; because everything passes with the burden with which it is affected.

Again, each kind of right, whether in a thing or to a thing, is variously distributed; namely, into dominion, usufruct, use, possession, etc. Dominion in general is the right of governing or of disposing of some thing as one's own. But that is said to be one's own which is so subjected and bound to him whose it is said to be, that he can dispose of it by his own right, not by the commission of another. Thus God has right over the whole creature as over his own thing, because he can decree concerning it whatever pleases him. Thus likewise the King has right and dominion over his kingdom, and anyone over his possessions.

But dominion can be divided into dominion of jurisdiction, and of property. Dominion of jurisdiction is the power of governing one's subjects. The acts of governing are to command, to forbid, etc. Dominion of property is the right of disposing of some thing as one's own for one's own advantage. From this dominion everyone is called lord of his own thing; whether he be a private person or a public one, or a community. For a public person and a republic can possess goods by private right, in the manner of a private person.

Usufruct is the right of using things belonging to another, and of taking their fruits, saving the substance of the things. It is called first the right of using, that the right may be excluded which a creditor has in a pledge, or a depositary in a deposit: for these cannot use those things; but if they use them against the will of the owner, they are bound to restore to him the estimation of the use. There is added of taking the fruits, that there may be excluded the bare right of using some thing, as a hired horse: for by usufruct not only the use of the thing, but the enjoyment of it is granted, that is, the right of receiving all the fruits proceeding from that thing. There is added thirdly, saving the substance of the things: because the usufructuary ought to reserve the thing intact for the proprietor. Hence it comes about that usufruct properly so called cannot be constituted in things which are consumed by use, as in wine, oil, grain, and money. Use is the right of using a thing belonging to another, saving its substance. Which definition is clear from what has been said above concerning usufruct.

The remaining divisions of right you will be able to gather from the various divisions of laws declared in the preceding Article; for since laws either flow from right, or confer right to a thing; it follows that there are as many rights of the genus as there are diverse laws.

You ask. How does the law of nations differ from purely natural law?

Some respond that natural law differs from the law of nations in this, that natural law is common to all living creatures, both brutes and men, as we said above from Justinian, book 1 of the Institutes.

But we have declared quite sufficiently that this is less rightly and aptly said; for there is no law truly common to men and other animals, because brute animals are not capable, properly speaking, of obedience, or of justice or injustice. Moreover, the natural law taken generically consists in the dictate of natural reason: but such a dictation cannot be found in brutes; and therefore there cannot be in them a law or rule of nature. Finally, the natural law is not regulated by conformity to sensitive nature, but to rational nature; for it dictates what befits rational nature; and consequently it does not pertain to brutes, which are wholly devoid of reason.

Others respond that the law of nations is purely positive and differs from natural law, because the latter is only permissive, while this is also preceptive, that is, the former only permits something to be done licitly; this moreover obliges one to do it.

But to the contrary; that which is permitted by the law of nations either is licit by natural law, or it is not. If the first, therefore it pertains to the law of nature. If the second, therefore the law of nations militates against the very law of nature and prevails over it, and makes licit what by the nature of the thing was illicit.

Add that by the law of nations many things are not only licit, but even commanded: for instance, that commerce be everywhere free: that certain persons be specially deputed to divine worship, through whom alone sacrifices may be licitly made, etc.

Certain others respond that the law of nations regards men not singly and considered apart, but inasmuch as they are gathered in some society: but natural law does not regard the community itself precisely, but men considered individually.

But this response likewise does not satisfy; for the very institution of society, whereby men live in the union of a city, or kingdom, or commonwealth, proceeds from the law of nations, yet does not arise from community; otherwise it would arise from itself, and would presuppose itself.

Therefore I judge it truer to say, that the law of nations differs from natural law in this, that those things which are prohibited or commanded by natural law are established by the force of natural reason alone; while those which are prohibited or commanded by the law of nations have joined to them at least interpretative human legislation, and an external institution common to all, or at least to most nations. Hence it comes about that the law of nations is truly human, and positive, both on the part of matter and on the part of form: for what natural law merely permits, the law of nations establishes absolutely, and commands to be done; thus, for example, natural law merely permits that there be a division of fields, if men wish to divide those things which nature has exposed in common: but the law of nations establishes that that division be absolutely made, in order better to avoid negligence in cultivating the fields, and to forestall confusion and disturbance of the commonwealth.