Page:Catholic Encyclopedia, volume 13.djvu/86

 RIGHT

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RIGHT

evident, it is customary to regard the simple fact as the title of the right.

The right of which we have hitherto been speaking is individual right, to which th':> obligation of com- mutative justice corresponds. Commutative justice regulates the relations of the members of human society to one another, and aims at securing that each member renders to his fellow-members what is equally theirs. In addition to this commutative justice, there is also a legal and distributive justice; these virtues regulate the relations between the complete societies (State and Church) and their members. From the pro- I>ensities and needs of human nature we recognize the State as resting on a Divine ordinance; only in the State can man support himself and develop according to his nature. But, if the Divine Creator of Nature has willed the existence of the State, He must also will the means necessarj' for its maintenance and the attainment of its objects. This will can be found only in the right of the State to demand from its members what is necessar>' for the general good. It must be authorized to make laws, to punish violations of such, and in general to arrange everything for the public welfare, while, on their side, the members must be under the obligation corresponding to this right. The \-irtue which makes all members of society contribute what is necessar>' for its maintenance is called legal justice, because the law has to determine in individual cases what burdens are to be borne by the members. According to Catholic teaching, the Church is, like the State, a complete and indeiJcndent society, where- fore it also must be justified in demanding from its members whatever is necessary' for its welfare and the attainment of its object. But the members of the State have not only obligations towards the general body; they have likewnse rights. The State is bound to distribute public burdens (e. g. taxation) according to the powers and capability of the members, and is also under the obligation of distributing public goods (offices and honours) according to the degree of worthiness and services. To these duties of the gen- eral body or its leaders corresponds a right of the members; they can demand that the leaders observe the claims of distributive justice, and failure to do this on the part of the authorities is a violation of the right of the members.

On the basis of the above notions of right, its object can be more exactly determined. Three species of right and justice have been distinguished. The object of the right, corresponding to even-handed justice, has as its object the .securing for the members of human society in their intercourse with one another freefiom and independence in the use of their own po8.sf!s.sioas. For the object of right can only be the gwxi for the attainment of which we recognize right SA neces.sar>', anti which it effects of its very nature, and this gcxxl is the freedom and independence of even,' member of society in the use of his own. If man is to fulfil fn^-ly the tasks imposed upon him by G'kI, he must pf)ss<'Ks the means nece,ssary for this purpow!, and be at liberty U) utilize such indepen- dently of others. He must have a sphere of free a(tiv- ity, in which he is secure from the interference of others; this object is attained by tlie right which protects each in the free use of his f)wn from the en- croaehments of others. Hence the proverbs: "A willing p rnakf use of his rights". For the object of the right whifh rorrfsponds to commutative justice is the liberty of tlic iKmsessor of the right in the use of his own, and this right is not attained if «'ach is bound always to mak<- uh*- nf and insist ui)on his rights. The objffl of th»' right which ••orn-sponds to legal justice is the gfxxi of thf community; (if this right we may not say that "no one is bound to make use of his right", Bince the c<^>mmunity — fjr, mon* correctly, its l^tdefH — muHt make u»e of public rights, whenever

and wherever the good of the community requires it. Finally, the right corresponding to the object of distributive justice is the defence of the members against the community or its leaders; they must not be laden with public burdens beyond their powers, and must receive as much of the public goods as be- comes the condition of their meritoriousness and services. Although, in accordance with the above, each of the three kinds of rights has its own immediate object, all three tend in common towards one remote object, which, according to St. Thomas (Cont. Gent., Ill, xxxiv), is nothing else than to secure that peace be maintained among men by procuring for each the peaceful possession of his own.

Right (or more precisely speaking, the obligation corresponding to right) is enforceable at least in general — that is, whoev(>r has a right with respect to some other person is authorized to employ jihysical force to secure the fulfilment of this obligation, if the other person will not voluntarily fulfil it. This en- forceable character of the obligation arises necessarily from the object of right. As already said, this object is to secure for every member of society a sphere of free activity and for society the means necessary for its development, and the attainment of this object is evidently indispensable for social life; but it would not be sufl^ciently attained if it were left to each one's discretion whether he should fulfil his obligations or not. In a large community there are always many who would allow themselves to be guided, not by right or justice, but by their own selfish inclinations, and would disregard the rights of their fellowmen, if thej' were not forcibly confined to their proper sphere of right; consequently, the obligation corresponding to a right must be enforceable in favour of the poss(>ssor of the right. But in a regulated community the power of compulsion must be vested in the public authority, since, if each might emplo}' force against his fellowmen whenever his right was infringed, there would soon arise a general conflict of all against all, and order and safety would be entirely subverted. Only in cases of necessity, where an unjust attack on one's life or property has to be warded off and recourse to the authorities is impossible, has the individual the right of meeting violence with violence.

While right or the obligation corresponding to it is enforceable, we must beware of referring the essence of right to this enforcibility or even to the authority to enforce it, as is done by many jurists sinc(> the time of Kant. For enforcibility is only a secondary char- acteristic of right and does not pertain to all rights; although, for example, under a real monarchy the subjects possess soidc rights with respect to the ruler, they can usually exercise no eoiiipulsion towards him, since he is irrespotisi})le, and is subject to no higher authority which can employ forcible meiusures against him. Rights are divided, according to the title on which they rest, into natural and positive rights, and the latter are subdivided into Divine and human rights. By natural rights are meant all those which we acquire by our very birth, e. g. the right to live, to integrity of limbs, to freedom, to acquire property, etc.; ail other rights are called acquired rights, al- though many of them are acquired, independently of any positive law, in virtue of free acts, e. g. the right of the husliand and wife in virtue of the marriage con- tract, the right to ownerless goods through occupa- tion, the right to a hou.se through purchiise or hire, etc. C)n the other hand, other rights may be given by positive law; according :ih the law is Divine or human, and the latter civil or ecclesiasti(al, we distinguish between Divine or human, civil or ecclesiastical rights. To civil rights heUing citizenship in a state, active or jiiissive franchise, etc.

Sumnut tht!ol.,ll-U.(.iCi.\vui><\(}.; Oominiccb SoTO; Molina; Lehhicr, Dr juxtitin it jitrr: Tapabklli d'Azeolio, Sapiiio te.nrrliro ili dirrtln nad/ra/c (Palermo, 1840-.3); Pruneb, Dix Le.hre vomRecht (Ratiabon, 1857); Vebmeersch, Quccationes de juatitia