Thomistic Summer Conference 2024 Lecture: Dr. Daniel Gutschke on the Species of Justice

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“The Species of Justice According to St. Thomas Aquinas”

   

by Dr. Daniel Gutschke
Thomas Aquinas College, New England
Thomistic Summer Conference 2024

 

 

In his discussion of the virtue of justice, St. Thomas distinguishes between legal, distributive, and commutative justice. The subtlety of this division has led John Finnis to conclude that “St. Thomas’ efforts to follow Aristotle in classifying types of justice … yield no really clear and stable analytical pattern.”^[1] Moreover, Finnis contends that the traditional interpretation of St. Thomas’s division, handed down through the commentary of Cajetan, tends to obscure St. Thomas’s understanding of these forms of justice.^[2] In this paper, I will uphold the traditional interpretation of St. Thomas’s threefold division of justice, indicating the principles of division that render his distinctions orderly and stable.

This paper will be divided into four parts. In the first I will present St. Thomas’s division of justice in his Summa Theologiae, along with Cajetan’s commentary. In the second, I will set forth Finnis’s concerns regarding St. Thomas’s division and Cajetan’s interpretation. In the third, I will show how legal justice is accurately represented in Cajetan’s schema. In the fourth, I will indicate how both distributive and commutative justice are correctly described by Cajetan.

 

The Divsion of Justice in the Summa Theologiae and Cajetan’s Commentary.

Having defined justice as “a habit whereby a man renders to each one his due by a constant and perpetual will,”^[3] St. Thomas proceeds to ask whether justice is a general virtue.^[4] He notes that a person can be related to others considered as individuals, or to the community as a whole. In both cases, a person’s actions can be ordered to the common good, insofar as the good of an individual contributes to the good of the whole of which he is a part. Even if an action directly pertains only to the agent himself, it is still referable to the common good insofar as the agent is a member of the community. Thus, every virtue can be directed by justice to the common good. To this extent, justice is a general virtue. St. Thomas gives to general justice the name “legal justice” because it has the same end as law, namely, the common good.

St. Thomas goes on to ask whether, in addition to general justice, there is also particular justice.^[5]He responds that, whereas general justice is directly ordered to the common good, it is necessary that there be particular justice, which directs man in his immediate dealings with other individuals.

St. Thomas goes on to identify distributive and commutative justice as two species of particular justice.^[6] This division corresponds to two ways in which the parts of a whole can be considered. If one considers the order of parts to one another, this order is directed by commutative justice. If one considers the order of the whole to the parts, this order is governed by distributive justice.

St. Thomas considers an objection according to which there is no need to posit a distributive justice that regards common goods, since it has already been established that “common things pertain to legal justice.”^[7] In his reply to this objection, St. Thomas maintains that, although distributive justice deals with common goods, it is not a part of legal justice. He notes that “movement takes its species from the term whereunto.”^[8] The defining mark of legal justice is not simply that it deals with the common good, but that it belongs to it “[to order] to the common good those matters which concern private individuals.”^[9] On the other hand, “it belongs to particular justice to direct the common good to particular individuals by way of distribution.”^[10]

In his commentary on the article in which St. Thomas distinguishes the two species of particular justice, Cajetan distinguishes legal, distributive, and commutative justice on the basis of the three types of relationship within a whole. According to Cajetan:

Alongside the threefold order found in any whole, three species of justice are found. For there is found, indeed, the order of parts among themselves, the order of the whole to the parts, and the order of the parts to the whole. And justice is similarly found to be threefold: legal, distributive, and commutative. For legal directs the parts to the whole, distributive directs the whole to the parts, and, finally, commutative directs the parts among themselves.^[11]

Here, Cajetan has combined the distinction between general and particular justice, on the one hand, and distributive and commutative justice, on the other, by utilizing a single principle of division, namely, the kinds of relationship within a whole.

 

Finnis’s Concerns Regarding St. Thomas’s Division and Cajetan’s Schema

According to Finnis, “the instability in St. Thomas’ classifications of justice suggests that he does not take them too seriously.”^[12] In support of this claim, he contends that “the explanation which St. Thomas suggests for the difference between general … and particular … justice—that the former regards (the good of) a whole … while the latter regards … parts …—is very elusive. For in respecting and promoting the rights of each of the ‘parts’ … of a group, one is acting for the good of that group… . And, ‘in serving some community one serves each of the people contained within it.”^[13] Thus, on Finnis’s reading, the distinction between general and particular justice lacks a firm foundation, for it is based on a distinction between whole and parts which is itself indefinite.

Finnis further claims that Cajetan’s division of justice distorts St. Thomas’s understanding of each form of justice in question. For instance, Finnis maintains that to regard legal justice as governing only one kind of relationship, namely, that of parts to the whole, obscures the universal nature of legal justice. As Finnis correctly notes, for St. Thomas, legal justice is “the fundamental form of all justice, the basis of all obligations, distributive or commutative” insofar as it is “the underlying duty to respect and advance the common good.”^[14] In the new schema, Finnis maintains, legal justice is reduced to “little more than the citizen’s duty of allegiance to the State and its laws.”^[15] Thus, for Finnis, Cajetan’s account of legal justice illegitimately narrows its properly universal scope. Moreover, if legal justice is simply the citizen’s duty of obedience to the state and its laws, the question arises of how this can be reconciled with St. Thomas’s contention that legal justice is principally a virtue of rulers.

As regards distributive justice, Finnis notes that “on St. Thomas’s view, anyone in charge of an item of ‘common stock’ will have duties of distributive justice; hence any property-holder can have such duties, since the goods of this earth are to be exploited and used for the good of all. In the newer view (now thought of as traditional), the duties of distributive justice belong only to the State or the personified ‘whole’.”^[16] Thus, according to Finnis’s critique, Cajetan’s classification obscures the duties of private citizens in the realm of distributive justice.

Finally, as regards commutative justice, Finnis asserts that the state has duties in commutative justice to its subjects, such as in the case of punishment.^[17] This truth, Finnis suggests, is easily lost sight of if commutative justice is regarded as directing only transactions between private citizens.

 

Legal Justice is Accurately Represented in Cajetan’s Schema

In upholding the legitimacy of Cajetan’s threefold division of justice, it is first necessary to defend the fittingness of dividing general justice against the two forms of particular justice. It may seem that this division violates a fundamental principle of division by dividing the whole against its parts. If legal justice is a general virtue which encompasses the entirety of virtue, how can it be rightly divided against two particular virtues?

In responding to this objection, it is necessary to distinguish two ways in which something can be general in relation to other things: by predication or virtually.^[18] A thing is general by predication when it is related to other things as genus to species. In this sense, that which is general is essentially the same as the things in relation to which it is general. On the other hand, a universal cause is virtually general in relation to its effects, insofar as the effects depend upon the power of the cause. It is in this second way that legal justice is called a general virtue, for it is the cause of the other virtues being ordered to the common good. In this sense, a universal cause need not be essentially the same as its effects. Insofar as legal justice has its own distinct proper object, to which it directs the other virtues, it is essentially distinct from the other virtues, including the two forms of particular justice. Thus, it can be appropriately distinguished from the two forms of particular justice within the same division.

As we have seen, Finnis regards the distinction between general and particular justice as elusive because there does not seem to be a fixed distinction between the community as a whole and its individual members. St. Thomas addresses this issue in responding to an objection that there should not be distinct virtues ordered to the community and to individuals, since the species of virtue do not differ according to one and many. He responds by noting that “the common good of the [city] and the particular good of the individual differ not only in respect of the ‘many’ and the ‘few,’ but also under a formal aspect. For the aspect of the ‘common’ good differs from the aspect of the ‘individual’ good, even as the aspect of ‘whole’ differs from that of ‘part.’”^[19] The city is not a mere aggregation of individuals; rather, it is a unity of order which makes human flourishing possible in a unique way, insofar as it is the first community that provides everything necessary for a complete human life. The virtue of acting precisely for the sake of this order is formally distinct from a virtue which, considered in itself, is ordered to the good of an individual.

While the common good and the individual good are thus formally distinct, it is critically important not to regard the common good as an alien good which is entirely separate from the good of individuals. When one acts for the sake of the common good according to the virtue of legal justice, one is not acting for the sake of an alien entity that has no intrinsic connection to the happiness of oneself and one’s fellows; rather, to act for the common good is to foster and preserve the greatest natural context and support for true human flourishing, and thus to serve all those for whom such a life is made possible.

In order to understand the relationship of legal justice to the two forms of particular justice, it is necessary to know the kind of common good to which legal justice is ordered. As we have just seen, in arguing that general justice is fittingly distinguished from particular justice, St. Thomas notes the formal difference between the common good of the city {civitatis} and the good of the individual. This indicates that, for St. Thomas, legal justice is specifically ordered to the common good of the city. Finnis, however, is reluctant to regard legal justice as essentially ordered to the specifically political common good. According to Finnis, one of the problems with Cajetan’s division is that it leads to “treating the state (rather than any and every community to which one is related) as the only direct object of general justice.”^[20] For Finnis, to regard legal justice merely as necessitating obedience to the state and its laws involves an illegitimate constriction of the true universality of legal justice. I argue, however, that a proper understanding of legal justice’s ordination to the specifically political common good is precisely what accounts for its universality and its preeminence among the moral virtues.

According to St. Thomas, legal justice “stands foremost among all the moral virtues, for as much as the common good transcends the individual good of one person.”^[21] The natural moral virtues are brought to perfection by their ordination to the political common good, for the political common good is the greatest natural good in the moral order. It is for this reason that St. Thomas refers to the natural moral virtues as political virtues, for they perfect man precisely in his capacity as a political being. Legal justice is thus greater than the other moral virtues insofar as it is the very virtue that brings them to their natural completion.

Here, we can note the parallel that St. Thomas draws between legal justice and the virtue of charity. According to St. Thomas, “just as charity which regards the Divine good as its proper object is a special virtue in respect of its essence, so too legal justice is a special virtue in respect of its essence, in so far as it regards the common good as its proper object.” This parallel is especially fitting since legal justice does on a natural level what charity does on a supernatural level. Just as legal justice unifies and elevates the natural moral virtues by ordering them to the political common good, charity unifies and elevates all virtues by ordering them toward God, the common good of all things.

These considerations help resolve Finnis’s concern that Cajetan’s schematization obscures the universal nature of legal justice by limiting it to one particular kind of relationship, that of the part to the whole. In fact, it is precisely legal justice’s orientation to the political common good that allows for its universal character. It is because participation in the political common good constitutes man’s greatest natural moral perfection that legal justice is able to perfect all the natural moral virtues.

Moreover, by associating legal justice with law, St. Thomas is by no means advocating a slavish adherence to the exact letter of law, but is rather acknowledging the importance and nobility of law as a principle directing man to the good of the political community. Human law contributes to the political common good by forbidding vice, educating citizens towards virtue, training their wills, and making concrete determinations among the multiplicity of ways in which the common good may be realized.

That St. Thomas is not advocating a slavish adherence to the letter of the law is indicated in his insistence on the importance of the virtue of epikeia,^[22] by which one acts according to the intention of the lawgiver. If legal justice is taken as requiring a general compliance with law, then epikeia is the most important part of legal justice, insofar as the intention of the lawgiver is more important than the letter of the law. If legal justice is taken as requiring adherence to the letter of the law, then epikeia is a distinct virtue that exceeds legal justice.

Finally, the fact that legal justice is primarily a virtue of political rulers does not prevent it from being the virtue that orders the parts to the whole, for it is precisely the role of the political ruler to coordinate the actions of his subjects in view of the common good. As St. Thomas explains in his De Regno:

Things differ by what is proper to each: they are united by what they have in common. But diversity of effects is due to diversity of causes. Consequently, there must exist something which impels towards the common good of the many, over and above that which impels towards the particular good of each individual.^[23]

This simple argument is at the heart of St. Thomas’s theory of authority. Contrary to Adam Smith, the common good will not simply arise through individuals pursuing their own private goods; rather, the deliberate guidance of the community by political rulers is required. Thus, St. Thomas states that legal justice “is in the sovereign principally and by way of a master-craft, while it is secondarily and administratively in his subjects.”^[24]

 

Distributive and Commutative Justice are Accurately Represented in Cajetan’s Schema

As we have seen, St. Thomas distinguishes between distributive and commutative justice according to the types of relationship that they govern. He goes on to present what appears to be a more fundamental distinction between these two virtues. According to an objection, since the form of a virtue is taken from the mean that it observes, if justice is to remain one virtue, it must observe a single mean. In his reply, St. Thomas asserts that distributive and commutative justice agree in the general form of equality, but differ in terms of kinds of equality. Distributive justice is concerned with proportional equality, while commutative justice is concerned with arithmetical equality.

The types of equality established by distributive and commutative justice reveal their essential interconnection, as well as the foundational role played by distributive justice. The Dominican Paul-Dominique Dognin cautions against relegating distributive and commutative justice to two entirely separate domains. As he expresses it “there are not two domains, but there are two techniques that the same virtuous subject must successively apply to an identical domain.”^[25] Within this identical domain, distributive justice plays the more fundamental role.

To illustrate the relationship between distributive and commutative justice, Dognin uses the example of a bankruptcy. In the event that a bank is unable to make its creditors whole, it must employ a proportional equality in order to repay them to the extent that it can. Taking into account the proportion according to which its creditors have invested funds in the bank, the bank must determine what it owes to each according to this proportion. Thus far, the actions of the bank have been guided by distributive justice. Once this proportionality has been established, however, the bank finds itself face to face with each individual creditor, who must be paid in accordance with the sum dictated by distributive justice. The actual rendering of this sum is an act of commutative justice.

In our example, we have seen a private entity, a bank, dividing its available assets according to the proportional equality of distributive justice, which would seem to suggest that distributive justice is not exclusively a virtue of political rulers. St. Thomas takes up this issue in response to the objection that, because justice must be present in both the ruler and his subjects, and it belongs solely to the ruler to distribute, distribution does not pertain to justice.^[26] He begins his response by affirming the exclusive prerogative of the one presiding over common goods when it comes to their distribution. Distributive justice can also be present in subjects insofar as they are content with a just distribution. He then notes that “distribution of common goods is sometimes made not to the city, but to the members of a family and such distribution can be made by authority of a private individual.”^[27] The structure of St. Thomas’s reply thus suggests that distributive justice, like legal justice, is principally a virtue of political rulers, which is possessed in a secondary fashion by private citizens insofar as they are content with just distributions and insofar as they make distributions within smaller communities over whose goods they have authority.

The reason why political rulers exercise distributive justice in a primary sense is made clear in St. Thomas’s discussion of property. Whereas the common destination of material goods pertains to natural law, the private possession of goods belongs to human law. The existence of private property derives from man’s ability to recognize that the division of property into private holdings is the best way of ensuring that the goods of the community serve the needs of all. Because the good of the community as a whole belongs to the care of political rulers, it is they who are most fundamentally responsible for ensuring that the goods of the community are justly distributed. In doing so, political rulers are fulfilling their primary responsibility of promoting the common good, understood as the communal life of virtue, insofar as such a life is more readily attainable to the extent that the goods of the community are justly distributed.

Just as, in the case of the bankruptcy, the activity of distributive justice was seen to be prior to that of commutative justice, so too, distributive justice is prior to commutative justice in regards to the possession and exchange of property in general. As Dognin expresses it, it is distributive justice which gives to commutative justice true human value.^[28] It does so by taking goods that, of their nature, are not the private property of any men, and dividing them proportionally according to the relevant distinctions among the members of the community.

Commutative justice, on the other hand, proceeds in what Dognin calls “a blind and mechanical fashion.”^[29] Because commutative justice requires arithmetical equality, its effect will be that of preserving the current distribution of goods. Thus, if existing property arrangements are not in accord with distributive justice, commutative justice itself will no longer serve true justice, for the proportion among goods will not correspond to the proportion among persons.

This understanding of the relationship between distributive and commutative justice indicates the danger of banishing the notion of distributive justice from economic life. According to Dognin, “The liberals accept only the commutative, in which they see … ‘the rule of free exchange on an organized market.’ They refuse the distributive or they see only an imperative ‘enunciated by a third’, and this in an arbitrary fashion.’”^[30] The role of political rulers as the principal agents of distributive justice requires that they attend to the distribution of goods within their communities and take prudential measures to ensure that such distributions correspond to the requirements of distributive justice.

We are now in a position to respond to Finnis’s concerns about the supposed distortions of distributive and commutative justice in Cajetan’s schema. As regards distributive justice, Finnis contends that Cajetan’s division obscures the fact that private citizens have duties of distributive justice. It is true, however, that, according to St. Thomas, political rulers exercise distributive justice in a primary way, insofar as they are principally responsible for the just distribution of goods within the political community. Subjects exercise the virtue of distributive justice by being content with just distributions, by doing what they can in their own right to help foster a just distribution of goods within society, and by making distributions within smaller communities over whose goods they have authority. The right of private citizens to determine the use and exchange of their property is not absolute, but is subject to the prudential determinations of those who have authority over the political community and its goods.

Finnis also contends that Cajetan’s division obscures the fact that the political community has duties in commutative justice to its citizens. As we have seen, however, political rulers are most fundamentally responsible for establishing just distributions of goods, honors, benefits, burdens, etc. among their citizens, and their role in upholding commutative justice has value, ultimately, in maintaining this just distribution. Moreover, St. Thomas maintains that, considered formally, all of the judgments of judges bear the aspect of distributive justice. As regards the matter that is judged, the judgement may pertain to distributive or commutative justice, insofar as there may be a question either of distributing goods or of simply restoring something that is wrongly withheld from another. If we consider the form of judgment, however, St. Thomas notes that “even in commutative justice, the judge takes from one and gives to another, and this belongs to distributive justice.”^[31] From the perspective of the political ruler, the very act of taking something from one individual and restoring it to another has the effect of reestablishing proper proportionality and thus pertains to distributive justice.

 

Conclusion

In conclusion, Cajetan’s schema provides a helpful illustration of the fundamental ways in which men render what is due to one another. Men ought to order their actions to the good of their political communities, and the virtue of legal justice perfects the will in constantly and perpetually doing so. Political rulers owe to their citizens a just share of goods which will enable them to partake in the virtuous life of the community. In their direct exchanges with one another, private citizens must adhere to the arithmetical equality of commutative justice, so that neither party will suffer a loss and a just distribution of goods will be preserved.

 

 

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