Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Monday, April 4, 2011

Natural Law's Modern Cousin Germain: Commutative Justice

THE CONCERNS OF JUSTICE DO NOT MERELY encompass the relationship between the community as a whole and the individual in the matter of the distribution from (and contribution to) the goods of (or the obligations to) the community. Justice also encompasses the relationships between the individual and individual, including an individual and the officials of the community. The interactions between individuals is the focus of commutative justice.

This, of course, is much in keeping with Aristotle, who himself divided his treatment of justice into distributive justice (διανεμητικὸν δίκαιον or dianemētikon dikaion) (Nicomachean Ethics, 1132b28; 1132b 24, 32) and "corrective" justice (διορθωτικόν δίκαιον or diorthōtikon dikaion) (e.g., Nicomachean Ethics, 1131a1, 1131b25, 1132b25). The latter dealt with the relationships between individuals, the synallagmata (συναλλάγματα) or arrangements between citizens. The synallagmata (συναλλάγματα) was understood broadly by Aristotle, and included voluntary types of arrangements (business contracts) as well as involuntary dealings (crimes, defamation). Aristotle's notion of "corrective" justice is somewhat narrowed by the fact that he viewed this aspect of justice in terms of restitutionary or compensatory notions, and not just arrangements prior to the breach of duty, either in contract or in tort. St. Thomas Aquinas expanded the Aristotelian category of corrective justice or diorthōtikon dikaion and expanded it to include exchanges before (as well as after) any breach, and so used the term justitia commutativa from whence we derive our notions of commutative justice. (Cf. S. T. IIaIIae, q. 61, a. 1.) It ought to be noted that the division of justice into distributive and commutative is one of convenience, and that these categories are not necessarily mutually exclusive, as there are problems of justice that would encompass issues of distributive and commutative justice both. The enforcement of a private contract by a judge, for example, includes aspects of commutative justice (arising from the contract) and distributive justice (arising from the obligations of the judge as official of the community or as a result of his ability to tax costs associated with the litigation).

"Commutative Justice" by Ambrogio Lorenzetti
(Palazzo Pubblico, Siena)

As a result of the commentary of Cajetan (Thomas de Vio), the Aristotelian/Thomistic bifurcation of justice was trifurcated into the relationships of the whole to the part, the parts to the whole, and the parts to each other, resulting in distributive, legal, and commutative justice, respectively. NLNR, 185-86. The triadic division has had its influence in improperly focusing the area of distributive justice as something that is the bailiwick of the State. However, the obligations of distributive justice are not limited to the State, and in fact may not in all cases be properly or principally the obligation of the State. Every individual owner of property has obligations to the common good in distributive justice. Accordingly, a very wealthy man (and in fact any man, but a wealthy man has greater obligations arising from his greater wealth and disposable income) ought to recognize that he holds his property not free-and-clear of obligations to the common good, but with implicit, but nevertheless real, obligations to handle his private holdings in a just manner relative to the common good. It would be better, it would seem, as less intrusive, for a wealthy man to consider his obligations in distributive justice by dispensing from his wealth to charity, or using his wealth to promote a new business and employment, or helping to support public institutions of higher learning, for example, rather than the State imposing highly-progressive income taxes or high estate taxes for the purpose of wealth or income redistribution. In this sense, however, the State's taxes aimed at redistribution may be "corrective" in the sense that they enforce a pre-existing obligation which the owner of private property has failed voluntarily to do.

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