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Right

Designates the object of justice, a moral or legal authority to possess, claim, and use a thing as one's own

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* Published by Encyclopedia Press, 1913.


Right, as a substantive (my right, his right), designates the object of justice. When a person declares he has a right to a thing, he means he has a kind of dominion over such thing, which others are obliged to recognize. Right may therefore be defined as a moral or legal authority to possess, claim, and use a thing as one's own. It is thus essentially distinct from obligation; in virtue of an obligation we should, in virtue of a right, we may do or omit something. Again, right is a moral or legal authority, and, as such, is distinct from merely physical superiority or preeminence; the thief who steals something without being detected enjoys the physical control of the object, but no right to it; on the contrary, his act is an injustice, a violation of right, and he is bound to return the stolen object to its owner. Right is called a moral or legal authority, because it emanates from a law which assigns to one the dominion over the thing and imposes on others the obligation to respect this dominion. To the right of one person corresponds an obligation on the part of others, so that right and obligation condition each other. If I have the right to demand one hundred dollars from a person, he is under the obligation to give them to me; without this obligation, right would be illusory. One may even say that the right of one person consists in the fact that, on his account, others are bound to perform or omit something.

The clause, "to possess, claim, and use, anything as one's own", defines more closely the object of right. Justice assigns to each person his own (suum cuique). When anyone asserts that a thing is his own, is his private property, or belongs to him, he means that this object stands in a special relation to him, that it is in the first place destined for his use, and that he can dispose of it according to his will, regardless of others. By a thing is here meant not merely a material object, but everything that can be useful to man, including actions, omissions, etc. The connection of a certain thing with a certain person, in virtue of which the person may declare the thing his own, can originate only on the basis of concrete facts. It is an evident demand of human reason in general that one may give or leave one's own to anyone; but what constitutes one's own is determined by facts. Many things are physically connected with the human person by conception or birth—his limbs, bodily and mental qualities, health, etc. From the order imposed by the Creator of Nature, we recognize that, from the first moment of his being, his faculties and members are granted a person primarily for his own use, and so that they may enable him to support himself and develop and fulfil the tasks appointed by the Creator for this life. These things (i.e., his qualities, etc.) are his own from the first moment of his existence, and whoever injures them or deprives him of them violates his right. However, many other things are connected with the human person, not physically, but only morally. In other words, in virtue of a certain fact, everyone recognizes that certain things are specially destined for the use of one person, and must be recognized as such by all. Persons who build a house for themselves, make an implement, catch game in the unreserved forest, or fish in the open sea, become the owners of these things in virtue of occupation of their labor; they can claim these things as their own, and no one can forcibly appropriate or injure these things without a violation of their rights. Whoever has lawfully purchased a thing, or been presented with it by another, may regard such thing as his own, since by the purchase or presentation he succeeds to the place of the other person and possesses his rights. As a right gives rise to a certain connection between person and person with respect to a thing, we may distinguish in right four elements: the holder, the object, the title, and the terminus of the right. The holder of the right is the person who possesses the right, the terminus is the person who has the obligation corresponding to the right, the object is the thing to which the right refers, and the title is the fact on the ground of which a person may regard and claim the thing as his own. Strictly speaking, this fact alone is not the title of the right, which originates, indeed, in the fact, but taken in connection with the principle that one must assign to each his own property; however, since this principle may be presupposed as self-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 the obligation of commutative 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 propensities 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 necessary 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 necessary 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 virtue which makes all members of society contribute what is necessary 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 independent society, wherefore 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 likewise 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 honors) according to the degree of worthiness and services. To these duties of the general 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 freedom and independence in the use of their own possessions. For the object of right can only be the good for the attainment of which we recognize right as necessary, and which it effects of its very nature, and this good is the freedom and independence of every member of society in the use of his own. If man is to fulfil freely the tasks imposed upon him by God, he must possess the means necessary for this purpose, and be at liberty to utilize such independently of others. He must have a sphere of free activity, in which he is secure from the interference of others; this object is attained by the right which protects each in the free use of his own from the encroachments of others. Hence the proverbs: "A willing person suffers no injustice" and "No one is compelled to make use of his rights". For the object of the right which corresponds to commutative justice is the liberty of the possessor of the right in the use of his own, and this right is not attained if each is bound always to make use of and insist upon his rights. The object of the right which corresponds to legal justice is the good of the community; of this right we may not say that "no one is bound to make use of his right", since the community—or, more correctly, its leaders—must make use 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 defense 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 becomes 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., III, 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, whoever has a right with respect to some other person is authorized to employ physical force to secure the fulfilment of this obligation, if the other person will not voluntarily fulfil it. This enforceable 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 sufficiently 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 they were not forcibly confined to their proper sphere of right; consequently, the obligation corresponding to a right must be enforceable in favor of the possessor of the right. But in a regulated community the power of compulsion must be vested in the public authority, since, if each might employ 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 since the time of Kant. For enforcibility is only a secondary characteristic of right and does not pertain to all rights; although, for example, under a real monarchy the subjects possess some rights with respect to the ruler, they can usually exercise no compulsion towards him, since he is irresponsible, and is subject to no higher authority which can employ forcible measures 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.; all other rights are called acquired rights, although many of them are acquired, independently of any positive law, in virtue of free acts, e.g. the right of the husband and wife in virtue of the marriage contract, the right to ownerless goods through occupation, the right to a house through purchase or hire, etc. On the other hand, other rights may be given by positive law; according as the law is Divine or human, and the latter civil or ecclesiastical, we distinguish between Divine or human, civil or ecclesiastical rights. To civil rights belong citizenship in a state, active or passive franchise, etc.

V. CATHREIN


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