Appendix 14. (1949).
Whenever attempted harm must be promptly resisted, even civil laws allow the use of force and private justice. Thus, in the case of need, everyone can defend himself from an aggressor even by wounding or killing him. Furthermore, certain laws permit the physical harming of a nocturnal thief, etc. The reason is that a government's power is never so promptly available that it can usefully replace an individual's power, who in such cases has the natural right to defence or restitution. In civil society therefore individuals can always exercise a part of those rights of coercion which they have in the state of nature. This portion of exercise which they still retain pertains to that part of Right we have called the `extrasocietal'.
It is certainly true that coercion by civil society cannot effect a full defence of all individual rights, nor the full restitution of all injuries resulting from harm. But this is not required by the perfection of civil laws; if civil laws attempted it, they would incur greater problems. M. Gioia correctly notes that
| the means necessary for executing the law would simply cause a level of anxiety more harmful than the evil it wished to prevent (Dell'inguria, de' danni, etc, pt. 2, bk. 1, c. 6). |
Moreover
| because many injuries 1. have no distinctive characteristic, granted their indefinite variety; 2. cannot easily be verified without a lot of movement and disturbance of witnesses; 3. are taking place nearly every moment, that is, there are too many malefactors; 4. are so difficult that no proportion can be determined between the supposed crimes and their punishment, it is clear that, even if all injuries constituted a crime in the eyes of the law, a great many would inevitably be left unpunished and courts would lose their credibility (ibid.). |
Another reason why perfect legislation alone must not assume the punishment of all injuries and take responsibility for the restitution of all harm is that legislation must preserve the family without destroying paternal power. It must leave some authority to the parents and to those superiors who take the place of parents, like teachers, just as it must recognise ecclesiastical authority. Moreover, if the punishment of children, pupils and faithful were impossible, or if recourse to civil authority were always necessary, we would have a tyrannical situation destructive of nature and of the very law of God. Legislation would also be defective if those who are naturally subordinate were able to invoke civil authority every time they were dissatisfied with their natural superiors. Various medieval laws on this subject deserve our consideration; examples can be found in the collection of Canciani and in various municipal statutes (cf. the criminal statute of Brescia, c. 88, and of Tor tona, bk. 4). One of these statutes excludes action against fathers and superiors for injuries to their children and dependents, against teachers for injuries to their pupils and against employers for injuries to their employees:
| In the case of disputes between husband and wife and between parents and children, even if blood has been drawn, provided death, disability or other lethal wound or blow do not follow, no action must or can be taken except in the foregoing cases or in danger of death. The same ruling applies to relatives and descendants to the fourth degree, also to those who without drawing blood strike a member of their family for the sake of correction, and to teachers who correct or apply the rod to their pupils. Anything else is invalidated by the law itself (Statuta criminalia Ripariae, c. 96). |
In this way the natural constitution of the family was upheld; and civil laws must certainly respect the sacred domestic hearth.
Civil laws can therefore abandon to individuals a part of the exercise of the rights to defence and restitution for two reasons: either 1. the responsibility does not pertain to civil laws so that a certain moderation on their part is praiseworthy and contributes to their perfection; or 2. responsibility does pertain to them, but they lack wisdom and energy, an indication of their imperfection which can be noted, amongst other differences, in those governments which make use of frequent fines against the condemned, or allow outlaws and the condemned to be punished [by citizens] for their crime, as did many municipal statutes in the Middle Ages.
Nevertheless it is extremely difficult to assign the precise limit of a civil government's rather than an individual's exercise of the rights to defence and restitution. Such a limit must certainly depend on the condition of peoples, the constitution of governments, the degree of civilisation, etc. There are consequently many cases which demand lengthy discussion and cannot be completely solved except by means of many delicate distinctions. For example:
1. Does it pertain to the perfection or weakness of civil laws whether a shepherd may be beaten, without any bone being broken, who fails to stop his animals wandering through crops (Statute of Ferrara, bk. 4, c. 50)?
2. Was that legislation perfect (as praised by M. Gioia) which allowed trees bordering public highways to be chopped for wood (this was previously prohibited by law) because it was feared they harboured robbers (Statuta Casalis Majoris, De officio et jurisdict. officialis Stratorum, arzinorum et aquarum)? And is there any wisdom in Gioia's suggestion that the same ruling be applied to rice fields established within limits of prescription by declaring that the rice belongs to the first occupier (Cf. Discussione economica sul dipartimento d'Olona)?