Lecture 12 — A Division of Political Justice

One kind of political justice is natural and the other is legal. [1016]

Natural justice is that which has the same force everywhere and is not affected by what men may or may not think. [1018]

That is called legal justice, which in the beginning is indifferent about a thing being done this way or that. But, when something just is decreed, a difference arises, such as a mina for redeeming a captive, or a goat but not two sheep for sacrifice; also when things are mentioned individually in the law, for instance, sacrifice to Brasidas; and again when sentences are passed by judges. [1020]

Some people were of the opinion that all justice is of this kind because what is by nature is unchangeable and has the same force everywhere (fire, for instance, burns both here and in Persia). But just things are looked upon as variable. [1025]

However, that opinion is not true universally, but in some respect, although there may be no change at all among the gods. But, with us, there is something natural, and this is changeable, because everything in us is changeable. Moreover, there is in us something natural and something not natural. [1026]

Among the things subject to change, what kind is just by nature and what kind is just not by nature but by law and agreement, if the two kinds are changeable in a similar way? [1027]

Obviously, the same determination applies to other natural things. Now, by nature, the right hand is stronger, although some people are ambidextrous. [1028]

Those things that are just according to agreement and utility are similar to the measures of commodities. But the measures of wine and grain are not equal everywhere, for where these articles are bought (wholesale), the measures are greater, where sold (retail), smaller. Likewise, things that are just not by nature but by agreement among men are not the same everywhere, as neither is the form of government. But one form only is best everywhere by nature. [1030]

Particular just and legal things hold the place of universals in regard to singulars, for there are many actions performed, but each of the just things is one and a universal. [1031]

There is a difference between an unjust action and an unjust thing, and between a just action and a just thing. The unjust thing is something unjust by nature or ordinance of man, but when it is performed, it becomes an unjust action. Before a thing has been done, it is not an unjust action, but something unjust. [1032]

It is the same with just action. In general, it is more often called the doing of a just thing (diceopragma), but it means the correction of unjust action. In regard to each of these, we must see afterward of what nature they are, what are their species, and how many they are. [1033]

1016. After the Philosopher has shown the nature of political justice (unqualified justice), now he makes a division of it.

First, he divides political justice into species.

Then, at particular just and legal things (1135a5; [1031]), he touches upon the division of this justice into individual parts.

He discusses the first point from three aspects.

First, he proposes the division.

Second, at natural justice (1134b19; [1018]), he explains it.

Third, at some people were (1134b24; [1025]), he rejects an error opposed to the division.

He says first that there is a twofold division of political justice: natural justice and legal justice. This is the same as the division that the jurists make, namely, that one kind of right is natural and the other positive. They call right the very thing that Aristotle calls the just object. Isidore too says in Libri etymologiarum (Libri etymologiarum 5.3.) that right is, as it were, what is just. But there seems to be inconsistency, in that political is the same as civil. In this way, what the Philosopher considers the whole division seems to be considered by the jurists as a part of the division, for they make civil law a part of positive law.

1017. But we must take into account that political or civil is taken in one way by the Philosopher here and in another way by the jurists. The Philosopher here calls justice political or civil from the usage the citizens are accustomed to, but the jurists call right political or civil from the cause, namely, that some city has decreed for itself. For this reason, the Philosopher appropriately designates legal or “posited by law” that which they call positive. Political justice, then, is properly divided by means of these two, for the citizens use justice to the extent that it is imparted to the human mind by nature and to the extent that it is posited by law.

1018. Then, at natural justice (1134b19), he indicates the parts of the preceding division.

First, he explains natural justice in two ways.

In one way, according to its effect or power, saying that that justice is natural that everywhere has the same force and power to induce to good and prevent evil. This happens because nature, the cause of this justice, is the same everywhere among all men. But justice by the decree of a state or prince has force only among those who are subject to the jurisdiction of that state or prince.

In the other way, he explains this justice according to its cause, when he says that natural justice does not consist in what seems or does not seem to be; that is, it does not arise from human conjecture, but from nature. In speculative matters, there are some things naturally known, like indemonstrable principles and truths closely connected with them. There are other things discovered by human ingenuity, and conclusions flowing from these. Likewise, in practical matters there are some principles naturally known— indemonstrable principles and truths related to them, as it were, such as that evil must be avoided, that no one is to be unjustly injured, that theft must not be committed, and so on. Others are devised by human diligence, which are here called just legal enactments.

1019. We must consider that that justice is natural to which nature inclines men.

But a twofold nature is observed in man.

One is that which is common to him and other animals.

The other nature belongs to man properly inasmuch as he is man, as he distinguishes the disgraceful from the honorable by reason.

However, jurists call “natural” only that right that follows the inclination of nature common to man and other animals, as the union of male and female, the education of offspring, and so forth. But the right that follows the inclination proper to the nature of man—namely, precisely as he is a rational animal—the jurists call the “right of the peoples,” or the jus gentium, because all people are accustomed to follow it—for example, that agreements are to be kept, that legates are safe among enemies, and so on. Both of these, though, are included under natural justice as it is here taken by the Philosopher.

1020. Second, at that is called legal justice (1134b20), he explains legal justice and seems to give three differences in justice of this kind.

The first is that, when something is universally or commonly imposed by law, it becomes legal. Regarding this, he says that that justice is called legal that in the beginning (before it becomes law) is indifferent concerning whether something is done in this way or that, but when it is laid down, or enacted into law, then a difference arises, because observing it is just and disregarding it is unjust. Thus, in some state, it has been decreed that a prisoner may be redeemed at a fixed price and that a goat should be offered in sacrifice, but that two sheep are not to be sacrificed.

1021. The second difference in legal justice is that something is stated by law in a particular case, such as when a state or a prince grants some privilege—called a private law—to an individual person. Touching this point, he says there are also legal enactments, not those that are decreed in a general way but whatever are prescribed by legislators as law in individual cases. It was enacted in a particular state, for example, that sacrifice should be offered to a woman named Brasida who rendered great service to the state.

1022. The third difference in legal justice is that sentences passed by judges are called a kind of legal justice. In regard to this, he adds that the decrees of judges are also legal enactments.

1023. But here we must take into consideration that legal or positive justice always has its origin in natural justice, as Cicero says in his rhetorical work. (De inventione 2.53.) Origin from natural right can occur in two ways.

One way is as a conclusion from a principle, and in such a manner positive or legal right cannot originate from natural right. The reason is that, once the premises are stated, the conclusion necessarily follows. But, since natural justice exists always and everywhere, as has been pointed out [1018], this is not applicable to legal or positive justice. On this account, it is necessary that whatever follows from natural justice as a conclusion will be natural justice. Thus, from the fact that no one should be unjustly injured, it follows that theft must not be committed, and this belongs to natural justice.

In the other way, something can originate from natural justice after the manner of a determination, and thus all positive or legal justice arises from natural justice. For example, that a thief be punished is natural justice, but that he be punished by such and such a penalty is legal justice.

1024. Also, we must consider here that legal justice has its origin in two ways from natural justice in the preceding manner.

In one way, it exists with an admixture of some human error;

in the other, without such error.

Aristotle explains this by examples. It is natural justice that a citizen who is oppressed without any fault on his part should be aided, and consequently that a prisoner should be ransomed, but the fixing of the price pertains to that legal justice that proceeds from natural justice without error. Likewise, it is natural justice that honor be bestowed on a benefactor, but that divine honor be given him—that he be offered sacrifice—arises from human error. But the just decrees of judges are applications of legal justice to particular cases.

1025. At some people were of the opinion (1134b24), he rejects an error opposed to this division.

On this point, he does three things.

First, he proposes the error together with the reason for it.

Second, at however, that opinion (1134b27; [1026]), he refutes it.

Third, at among the things (1134b30; [1027]), he asks a question occasioned by the refutation.

He says first that some were of the opinion that all justice is that which is established by law and that there is then no natural justice. This was the opinion of the followers of the Socratic philosopher Aristippus. They were influenced by this reason: that which is according to nature is invariable, and wherever it is, it has the same force, as is it obvious that fire burns in Greece as well as in Persia. This does not seem true of justice, because all just things seem to be changed at times. Nothing seems to be more just than that a deposit should be returned to the owner. Nevertheless, the return must not be made to a madman demanding his sword or to one who betrays his country and demands money for arms. So, then, it seems that there is nothing just by nature.

1026. Then, at however, that opinion (1134b27), he provides a refutation, saying that the statement that natural things are unchangeable is not so universally, but is true in some respect. The reason is that the nature of divine things— such as the nature of separated substances and of the heavenly bodies, which the ancients called gods—never changes. But, with us humans, who are counted among perishable things, there is something according to nature, and yet whatever is in us is changeable, either intrinsically or extrinsically. Moreover, there is in us something natural, like having two feet, and something not natural, like having a coat. Undoubtedly, all the things that are just among us are variable, although some of them are naturally just.

1027. Next, at among the things (1134b30), he raises a doubt occasioned by the preceding refutation.

He handles the first point in a twofold manner.

First, he asks the question.

Second, at obviously, the same (1134b32), he answers it.

First, he proposes this question. If all just human things are changeable, a question remains: of the things that change, what kind is just by nature and what kind is just not by nature but by the decision of the law and agreement among men, if the two are changeable in a similar way?

1028. At obviously, the same (1134b32), he answers the question just asked.

He considers this point in a twofold manner.

First, he shows how things just by nature are changeable.

Second, at those things that are (1134b35; [1030]), he shows how things just by law are changeable.

First, he says it is obvious that the arrangement found in other natural things likewise applies to things just by nature. Those things that are natural with us occur in the same way in the greater number of cases, but fail in a few. Thus, it is natural that the right hand is stronger than the left, and this is so in the greater number of instances, although it happens occasionally that some men are ambidexterous, since their left hand is as strong as their right. So also, the things that are just by nature—for example, that a deposit ought to be returned—must be observed in the majority of cases, but are changed in the minority.

1029. However, we must keep in mind that the essences of changeable things are immutable; hence, whatever is natural to us, belonging to the very nature of man, is not changeable in any way (for instance, that man is an animal). But things that follow a nature, like dispositions, actions, and movement, are variable in the fewer instances. Likewise, those actions belonging to the very nature of justice cannot be changed in any way (for example, theft must not be committed because it is an injustice). But those actions that follow [from the nature of justice] are changeable in a few cases.

1030. Then, at those things that are (1134b35), he shows how the legally just are changeable without exception. He says that regulations that are just according to arrangement and advantage—that is, by what is agreed among men for some utility—are similar to measures of salable commodities such as wine and wheat. These are greater where products are bought wholesale, but smaller where products are sold retail. So also, things that are not naturally just, but fixed by men, are not the same everywhere; thus, the same punishment is not inflicted everywhere for theft. The reason is that civil life and the administration of the state are not the same everywhere. All laws are framed as they are needed for the end of the state, although only one form of government is everywhere best according to nature.

1031. Next, at particular just and legal things (1135a5), he treats the division of justice in regard to the individual parts. He says that each particular just and legal thing is related to human affairs as a universal to singulars. The reason is that actions that are done according to justice are many, but each just thing is one, a kind of universal, as it were. Thus, that a deposit must be returned is one that has a reference to many cases.

1032. At there is a difference (1135a8), he shows what just action and unjust action are:

first, what unjust action is;

second, at it is the same (1135a11; [1033]), what just action is.

First, he says that unjust action and unjust things differ, for an unjust thing is something that is contrary to justice either by nature or by human decree, such as theft. But the doing of an action by someone (such as stealing) is called an unjust action, the execution of injustice, so to speak. However, before this is done by anyone, it is not called an unjust action, but an unjust thing.

1033. Then, at it is the same (1135a11), he shows what just action is. He says that, in a similar way, just action is present when a person does a thing that is just by nature or by regulation of law. But with the Greeks, the doing of a just thing in general is rather called dicaeopragma, or doing of what is just, but not every doing of a just thing seems to be called “justifying action,” but only when a person is corrected in the justifying action, namely, by restoring what is unjust to justice.

1034. Finally, he says that we must discuss later, in the Politics, (Politics 1.6.1255a3–1255b15; see Aquinas, In I pol., lec. 4, nn. 75–88.) the nature, the number, and the species of each type of justice, namely, natural and legal.