Aquinas on ius

I had an exchange over at Taki Mag about ius and right. That post is here. Here is a summary of some points that I was trying to make:

1.ius: For Aquinas, ius is the object of the virtue of justice. It is an external act which gives what is due to the other, in accordance with equality. Or to simplify, it is an external action which equalizes—in the case of commutative justice, it equalizes thing with thing or action and passion, in the case of distributive justice, it equalizes thing to person.

2. Ius can be used to name different things; the medievals, and the neoscholastics gave various lists of the things that could be named by ius. Prummer, for example, gives at least 4 different things.

3. Aquinas does not deal explicitly with subjective passive rights, although it can be maintained with little difficulty that an account of subjective passive rights (having a claim on someone doing x or giving y) can be extracted from Aquinas’ works.

It can be the case that the “right to life” and the “right to property” are correlates that can be derived from what Aquinas writes about ius and justice. Or they might be derived from a different framework, such as one based on dignity or sovereignty. Aquinas does not talk about the “right to life” or the “right to property.”

For Aquinas subjective passive rights would be defined by law or logically posterior to law--it is wrong for me to kill someone, and therefore it may be said he has a right to life. This is opposed to a certain understanding of rights in which rights are prior to law--I have a right to life, therefore it is wrong for you to kill me.

Murder is prohibited because it is unjust. If one believes that capital punishment is legitimatae then he concedes the right to life is not absolute, but is restricted by other precepts and moral considerations. Hence the “right to life” is delimited by law and not the other way around.

4. For an action to violate ius-titia, it must violate ius, right?

Is an act unjust because it violates "ius?" No. An act is judged to be unjust because it is in discord with the mean determined by reason through the form of equality specific to the particular justice involved (commutative or distributive). Aquinas does not say that something is unjust because it violates “ius.”

Do not kill the innocent is a precept of the natural law.

Aquinas would also point out that within the precept, as it is worded, the violation of the mean is implied by the use of the word “innocent.” One could restate it as “Do not kill someone unless that person has committed a crime deserving of that punishment, or retaliation, or that form of re-establishing equality.” The foundation of Aquinas’ conception of justice is not “rights to x” but equality, as mentioned above.

The scales of justice are not balancing ius (against something else), but some concrete thing with another thing (as you see in commercial exchange), or a thing with a person (as in distributive justice); or some passion with some action, in particular some injury that has been done (as in retributive justice). The possible exception might be ius as legal title or claim or legally conferred or recognized license to do something (the "right" to pursue further litigation, for example), which is exchanged with something else (for example, in a court settlement).

Aquinas would not say that because I have killed someone I therefore forfeit the "right to life", or that I must do something for him because this is in accordance with, or equal to, his ius. Ius is the action that I must perform in order to satisfy the debt in accordance with equality. Ius is not the same thing as what is owed, debitum, though it does include what is owed within its definition.

5. Justice requires an acknowledgement that someone else is a human being (or that he has "value" or "worth" or "dignity"); but it is specifically different from charity and has a different reason (ratio). Otherwise, the love of neighbor, taken by itself from any other moral considerations, would not permit such a thing as capital punishment, and justice would be the same as charity.

So to say:

In order for justice to work, humans need some God-given intrinsic value that is being protected, something to which just actions are madeto conform.

is insufficient, because it does not show how justice is distinguished from charity. What justice also includes is the notion of equality, which is included in the mean of justice.Hence Aquinas speaks of murder being opposed to not charity, but to justice, because it goes beyond the mean or what is equal.

6. So the "Thomistic" view is that goods and law are prior to subjective passive rights; in some other accounts of subjective passive rights, goods and rights prior to law.

7. If rights were only named subjective passive rights, which are in turn defined by natural [or positive] law, it would not be problematic to endorse this sort of “rights talk.” But these are not the only things which “right” or “ius” names.

One needs to be aware that the word “right” is used differently by people. There is a reason to avoid talking about “rights” in Aquinas, because his ius is not the same thing as subjective passive right; rather it is a correlate to duty, or obligation, and by extension to Aquinas's ius. And what notion of subjective passive right can be derived from Aquinas is not the same as the things called "rights" by those contemporary accounts--subjective active rights.

Rights are not real entities like us or plants or the elements--they’re logical beings constructed through reason, and hence one cannot say that this logical being is the same as that one if they have different causes, especially if they have a different relationship to law. I believe that one should avoid using the name "right" when in dialogue unless both parties are willing to establish a definition and see how they differ or agree.

The use of ius to name subjective passive rights does occur in papal encyclicals and other Church documents, but one must remember that these are not necessarily infallible, or have the same weight as more authoritative documents. As far as I remember, the explanation behind rights has not been done in those encyclicals, though I will have to check the Compendium of Social Doctrine to see what it offers. Those rights need to be understood in light of Tradition, and it can be done, but the necessary theological work has rarely been put forth.

Things get even trickier when it comes to subjective active rights, since these are not discussed by Aquinas as well, and at first glance are not related to his ius. It may be possible to give an explanation of subjective active rights based upon Thomistic principles, but one will need include among those principles his understanding of authority, law, and the common good.

There is this objection from Caper:

You are objecting to a perfectly valid translation of a word because of how people misuse the word. You are attributing to the word only a false definition, then rejecting the word on that basis. There is nothing wrong with the word in its traditional usage, but you privelege modern definitions over the traditional one.

I respond that language does not have normativity built into it. What words name is determined by convention. I will concede that if a majority uses a word to name x and not something else, then it might be possible to say that someone using that same word to name y is "wrong." But if a significant number of people wish to name something else by using the same word, you either live with it and talk accordingly, or you can tell them that they’re “wrong,” but that would be unproductive and not really true. How words are used is bound by convention, and if a significant number, even a majority of people decide to use a word in a different way than you would like, it’s better to concede that to them and work around it, than to keep telling them that they’re wrong. If you have to engage with their definition and the arguments behind the definition either way, then it’s much better to avoid the fight over who is using a word “correctly.”

Edit:

The popular understanding of the CA Supreme Court decision shows a different understanding of rights--all people are the same, and it would be wrong to deny same-sex couples the "right to marry" since that would violate their "equality." Right is prior to [positive] law. In this understanding, is right prior to [natural] law? I would have to look up a more technical exposition of the view, but I do not think that natural law even comes into play. What is foundational are certain 'natural' rights. If there is a natural law, it is that one should respect and not infringe upon these 'natural' rights.