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ACQUIRED RIGHTS

Chapter 5

528. We must now discuss another question concerning the limits of occupancy: can occupancy give us rights of seigniory over persons?

529. Occupancy gives us rights over self because person, by its gradual action, takes possession of those different parts of nature which form the human individual.

530. This right, by which we become master of ourselves, our powers and our faculties, will be discussed in later Articles; it is sufficient to have indicated it here. However, by comparing it with the seigniory that human beings can exercise over others, we will better understand the nature of the right of seigniory we gradually acquire over self.

531. In my opinion, occupancy cannot in itself produce any right of seigniory over other adult individuals.

532. There is, however, a species of occupancy which can be a title to the right of seigniory over adults when they consent to it. But because this occupancy requires the other's consent, it cannot form part of our discussion on the formation of new rights. It is a case in which one free person submits and simply transmits to another a previously existing right, allowing the second person to take seigniory over the first. In the next book we still have to speak about this transmission of rights; here we restrict ourselves to speaking about their formation.

Is it possible therefore to form a right of seigniory simply by occupancy?

533. In the case of those who have not yet acquired full seigniory over self, we can reasonably maintain that some rights are acquired over them by occupancy.

534. Let us suppose that a baby abandoned by its parents and family has been given a home and is cared for at the benefactor's expense. Let us also suppose that the benefactor uses the baby for his own advantage, perhaps to alleviate his wife whose own child has died or as a companion for his children. Does he not acquire new rights by caring for the abandoned baby? No one could reasonably prevent him doing so. The child was not occupied; the benefactor acquired it by legitimate occupancy; he has thus obtained the right of possession of the child, the right to do good for it and to make harmless use of it. Anyone attempting to steal the child would certainly do him great harm, which he could resist with force.

535. It may be objected that we cannot occupy a human person as if he or she were a thing. In my book, Society and its Purpose, I have explained how we acquire dominion over human beings without harm to their personal dignity.(155) I showed that relative to nature there are many parts united to the human person which can all be matter for dominion by others. This dominion is limited to certain parts of human nature and can be exercised only on condition that the personal element is always respected. For example, I may have a right to the physical labour which others have contracted to do for me. In using their work, however, I must respect them by not applying it to any shameful or unbecoming purpose, and I must apply moderation in such a way that neither life nor health is seriously endangered.

The ownership that I can have over the faculties attached to person (but not over person itself) is entirely different therefore from the unlimited ownership I can have of things which lack intelligence. I have indicated this difference by calling the former `dominion' and reserving the term `ownership' for the right over things.

536. It is not absurd therefore to grant in general this limited dominion of human beings over their fellows. But another question presents itself: is occupancy the title which causes and effects this dominion? And if occupancy is the title both to ownership of things and to dominion over persons, why is it that adults cannot be occupied? Babies are as fully human as adults, and we grant that connatural rights exist in them, not only before the age of discretion but from the first moment of their being.(156) I fully agree. But let me now explain precisely why, in my view, the occupancy of babies is possible, while that of mentally sound adults is not.

537. Human will and intelligence are in act as soon as the human being exists; personal dignity subsists and cannot be violated in any way whatsoever, nor obstructed in its natural operations. But the baby can certainly be helped to carry out its actions. An infant needs this kind of help, expects it and receives it gratefully mothers tell us so. Caring for and educating an abandoned child therefore means simply helping it in its powerless state, and aiding it to preserve, develop and enrich its person.

538. Is this a kindness done by the benefactor, or a right exercised by him? It is both. First of all, the benefactor, in acting this way, is using his jural freedom; secondly, we may doubt whether he has acquired a real dominion over the baby relative to the baby itself, but we cannot deny that he has a real dominion relative to other human beings. We have seen that the notion of right is relative: by taking the baby into his home, the benefactor has truly acquired a right over it before all others, who have not taken it in as he has done. The love he lavishes on the baby would make it precious to him, a real good. Surely no one could legitimately deprive him of the child? His good action in exercising charity towards it can only obtain moral merit for him. He could indeed defend himself with force if others wished to usurp a tender responsibility which can only be measured by the loving affection of his heart, and from which he derives his greatest treasure, the virtue he exercises in the baby's regard.

539. The fact that he may derive some advantage from the baby is another reason why the baby can be the object of his right. The advantage he wishes to obtain is just and legitimate because he sees that he can make use of it without harming the child. He certainly cannot force bad milk or poison on the baby in order to assist the woman feeding it, but he can provide good milk. If this helps him and his wife, this is clearly within his right.

540. I maintain therefore that, although rights can be acquired by occupancy which have human persons as their object, these rights are vastly different from those over irrational things. Dominion over occupied persons is limited to `doing all we wish with an occupied individual, provided that we do not harm him in any way whatsoever and do not violate his personal dignity'. It is obviously a great limitation.

541. I must now retrace my steps. I have shown that dominion over a baby, acquired by occupancy relative to other human beings, does exist; I did not say whether this dominion extends to the occupied baby itself.
One of the differences between the right of ownership over irrational things and the right of dominion over rational things is that irrational things (the object of ownership) can neither dissent from nor consent to the right of their owner, nor have they any moral obligation corresponding to the right others have over them. Such an obligation exists solely in people co-existent with the owner. In the case of dominion, however, the corresponding obligation can be twofold: it can be present in those co-existent with the owner (who must respect the dominion) and in the individual who, as the object of the dominion, must acknowledge and respect his master. In this case dominion is relative both to others and to the one who is its object.

542. But this dominion, like ownership, clearly has only one of the two relationships, if the person who is the object of the dominion were not in a condition to give his consent or have some moral obligation.

543. In the case of the abandoned baby, it would seem obvious that the baby cannot give its consent to the dominion its benefactor exercises over it. Consent requires the use of reflection.

544. In fact the case is not as obvious as it seems. Although the condition of babies is mysterious and virtually unknown, I am convinced that human beings use their understanding and will from the very first moments of their existence; babies do indeed consent with all their will, utterly grateful for the loving care given them. I am convinced that they acknowledge the superiority and just dominion exercised over then by those who feed, govern and care for them. Finally, because morality begins with the use of will at the first moment the human being exists, I am convinced that babies are moral beings [App., no. 1]. It is certainly a fact that babies act spontaneously. Thus, they must fulfil those duties that are in complete harmony with their natural inclinations. In such cases, however, morality has no accompanying merit.

545. I said earlier that I doubted whether dominion over an occupied baby extended to the baby itself. I did so for two reasons: 1. to avoid an involved discussion on the nature of a human baby which would require a book of its own, but is not necessary here; and 2. because legitimate occupancy would, in my opinion, take place and in turn produce a right of occupancy for the occupier, even if the baby did not consent, or expressly refused consent.
I have spoken only of this kind of dominion because our question was: `Can occupancy alone, independently of the consent of the occupied individual, give rise to dominion over the individual?'

546. I answered `Yes', and in the case of babies, whose consent is not required for occupancy, I argue as follows.
We have seen that no one can restrict another's freedom to occupy things except by occupying them himself and preventing further occupancy. He can do this only by designating them for his own use and beginning to use them. A baby however cannot do all this. It cannot exercise to its own advantage the possession it has of its powers, nor can it provide for itself without the care and help of others. Thus, even granted that a baby has the right of ownership over those parts of itself which constitute its nature, not its person, other human beings are free to make harmless use of them, because, as I have shown, we can use others' possessions when we do them no harm (cf. 498, 506). This is all the more true if the use is to the advantage of the owner.

547. Moreover, although there is no doubt that a baby has ownership of all that is in its nature, it is doubtful whether this ownership is a right. The physical bond is certainly present, but it would seem the intellectual and the moral bond are not present, at least not completely, because the baby has not yet learnt to use its powers; it has not, it seems, entered fully into possession of itself. In other words, its person has not completed the occupancy of its nature.(157)

548. If therefore the baby is considered simply as the object of the right that all human beings have to harmless use of others' possessions, this right can be called `dominion', at least relative to other human beings. In their regard, we are simply exercising a seigniory acquired through the preceding act of occupancy, of which the child is the object.

549. On the other hand, if we consider the child as not yet having the full right of ownership over some part of itself, that is, over a part it cannot use, the right of dominion in the occupier is all the more evident.

550. We must admit however that when this kind of dominion is considered as a species of acquired ownership, the ownership takes on a more special limitation than the normal ownership of dominion: it is a provisional occupancy, producing a provisional, impermanent ownership.

551. Indeed we have seen that the immediate use of an unoccupied thing is not necessary for possessing it. It is enough that someone, having set his sights on it, organises it for himself and begins to work it for his own use, or else systematises the forces and means necessary to exploit the usefulness it can offer (cf. 472-474). Even if a baby has not asserted seigniory over itself, it continually strives to establish this seigniory, and for this purpose is moved by the spontaneity of its nature to use and increase its already existing forces.

552. It may be that a baby, once it is aware of its powers, lacks the internal act of will for reserving these powers to itself. For my part, I say that this act is implicit in human nature. The very close juncture between nature and person is such that nature is immediately felt by the person, which, bit by bit and without regard for anyone else, works towards possessing nature.

553. A child for whom others have assumed care and government, therefore, acts in the same way as someone who, having reserved something for himself by an internal act of understanding, is preparing to use it. No harm is done to him if others make use of the thing at the time he cannot use it himself. Indeed they assist rather than disturb his dispositions for taking full possession.(158)

554. We must now consider whether the benefactor's acquired dominion over the child remains, diminishes or ceases entirely when the child becomes an adult in full command of itself.

555. The dominion ceases by its very nature: once someone has acquired full seigniory over what is his, any outsider must withdraw.

556. This is true whether we consider the dominion over the child as the harmless use of what belongs to another, or as the provisional occupancy of an object not yet completely occupied by someone else.(159)

557. Does the caring foster-father of the abandoned child, therefore, the one who conscientiously reared it, have no right?

558. To answer this important question (`Has the foster-father any rights over the child and, if so, of what kind?') we must first consider the child's duties to the father. In our system we always move from duty to right, not viceversa.

559. In my opinion the child has, or at least can have, three different duties towards the benefactor:
1. the duty of gratitude,
2. the duty of submission
3. the duty of restitution

We shall examine whether the nature of each is only moral or both moral and jural, and consequently whether true rights correspond to these duties.

560. The duty of gratitude is simply a moral obligation incumbent upon anyone who has received a benefit or has simply been the object of some benevolent affection.

561. It is therefore a duty of the heart, and consists entirely in loving the one who has loved us, in wanting to help those whom we love because they have loved and helped us. Duties which impose affection are not classed among those to which true rights correspond, because affections, that is, simple affections,(160) are essentially free and hence the exclusive property of the one who nourishes them deep in his soul.(161)

562. The duty of submission - does a duty of submission to a benefactor exist in a grown child? Is the duty by its nature simply moral, or both moral and jural? In other words, can it be obtained by force if denied?

563. The duty of submission towards a rescuer certainly remains in the grown child (and in every human being saved from death). The reason is as follows.

564. In the natural fact and relationship between person and human nature, person takes possession of and has seigniory over the human nature. Person begins to do this naturally, as soon as the human being exists, because the will immediately begins to act and command the other powers. But in order to do all this, both person and the nature to be dominated by person must exist. Person, in the exercise of its domination, depends on the one from whom both it and the human being (of which person is the noblest part) have existence.
Hence, if we accept that the one who takes in a baby has saved it from certain death (which is the case when abandoned babies are taken into someone's home), there is no doubt that the child must acknowledge at the first possible moment that the full exercise of his freedom depends upon the one who saved him from destruction. He must attribute this exercise of freedom to his new father.

565. It may be urged that morality required the benefactor to save the baby. This however is a requirement of charity, not justice; a passer-by who ignored the abandoned baby would not deprive it of anything, nor would the baby consequently be able to demand back anything of its own; it would die through natural deficiencies, not because the passer-by had taken its life. The act therefore, by which the baby was taken in, pertains entirely to the beneficence and jural freedom of the compassionate passer-by.

566. I mention beneficence, because this requires gratitude from the child, and jural freedom, because this is a cause of rights and requires submission from the child.
The benefactor could certainly have saved the baby for himself, for his own advantage (provided the moral dignity of the child's person is safeguarded); he was saving something that belonged to no one and would have perished. He took possession of it without harm to anyone, just as we might retrieve from a river a piece of wood which would otherwise be lost in the sea: the wood belongs to the one who retrieves it because it has already perished relative to the owner who does not retrieve it. The benefactor therefore becomes the master of the baby, provided personal dignity is safeguarded.

567. This teaching is confirmed by the unanimous witness of antiquity and the laws of all peoples. If these laws seem to offend in the dispositions they lay down for the case in question, their offence consists in requiring an excessive submission of the fostered child. This submission was viewed as necessary for the public good, but it exceeded the limit prescribed by rational Right.

568. We then asked whether the dominion acquired in this way ceased when the child attained the use of reflection and of the freedom corresponding to reflection. We wanted to know whether at such a time the duty of submission, which clearly still subsisted, was a moral duty lacking a jural quality or also a jural duty with its corresponding right.

569. Our opinion on the matter will be clear if we separate the following two cases: 1. If the adult child spontaneously lives in submission to the will of the father who has chosen him, he does a virtuous, honest act. His father does not injure his rights when he reasonably exercises the authority to which the adult child warmly and unresistingly consents.

570. 2. If the adult child lacks full dominion of himself and consequently is to this extent something of a child, he remains subject in this regard and has a jural duty. The father who chose him retains dominion of that part of freedom which is inactive in him.

571. Let us look more closely at this second case. It is based on the fact that human beings acquire power over themselves gradually and more or less rapidly. This is characteristic not only of individuals but of nations, which as a result modify in various ways Right relative to patria potestas. Both natural and fostered children obtain their freedom in accordance with the development of their individual freedom.

572. Hence, among primitive peoples and among the present poorly developed peoples of Asia it was and is very easy to retain patria potestas in its full vigour and even make it hereditary, establishing great families which later become tribes. The explanation is that individual, reflective freedom does not come fully into act; a part of it remains dormant, as it were, and is not easily taken possession of by individuals.

573. In the fact we must therefore distinguish the principle from its application.

574. The general principle is: `No human being, by occupancy alone and without permission, can acquire dominion over another who has taken possession of himself.'

575. The application depends on the accurate determination of the factual condition applied to the principle, as follows: `Has the person taken actual possession of himself or not?'

576. Because the fact varies, the decision varies for each particular case. Consequently, at a definite age in a particular people and family, the hypothetical father can both have and exercise, according to rational Right, a degree of dominion over an adult he has brought up. But another father cannot do this in a different age, people and family without harm to the individual over whom he exercises the dominion.(162)

577. This shows us the futility of those abstract theories of rational Right which apply general principles to all cases without distinction. Such theories pay no heed whatsoever to different factual conditions; their authors are persuaded, for example, that they can decide `what kind of power the father has or has not in general over his child'. They risk condemning without further investigation any laws which attribute to him either more or less than the exact amount of power they are pleased to assign him. On the contrary, the variety of laws enacted by different peoples on these and similar matters clearly demonstrates that common sense, which is more reliable than the remote speculations of philosophers, easily sees how such disputes have many solutions, all of which are accurate and decided by the application of a unique principle to multiple, various facts.

578. The adult therefore is naturally free from patria potestas to the extent he has acquired dominion over himself. Otherwise he is subject to patria potestas.

579. It is however difficult to decide where the division is to be made, and what rule can be applied in order to separate patria potestas from seigniory over oneself. Nevertheless a sufficient rule can be deduced from the very principle from which I have drawn the notion of right.

580. We said that right arises from the moral duty imposed on us to do no harm to a person. When this duty is applied to natural ownership, the ownership becomes the condition of right. Natural ownership is a union between a thing and a person, founded in their nature and real relationship. If we disrupt this union we injure the person concerned. Precisely because duty forbids evil being done to him, his right is harmed when he is subjected to the evil of disruption. Therefore, whenever we regulate a thing or exercise some authority over a person without causing him any normal harm, we do not injure his right.
Hence, the general rule for knowing which part of authority the father can exercise over the person whom he chose and has cared for is: `He can exercise that amount of authority over him which does not cause him any natural upset.'

581. The most general symptom for knowing whether an act of authority causes upset or not, is JURAL RESENTMENT, that is, the resentment we show when we are persuaded of some offence to our rights.

582. Not all resentment is of this kind. Sometimes a child is sad because he does not like what he has been commanded. This is not resentment, and certainly not jural resentment, which is present only when `a person suffers because his freedom has been obstructed'.

583. I say `the most general symptom' because the symptom is not always visible when right is violated.

584. Sometimes it is invisible because of extraordinary virtue. Some very virtuous people happily submit to the unjust and brutish exercise of authority.

585. Nevertheless, generous people such as these suffer some natural upset, which is always caused by violated right. Their virtue consists in their not defending themselves and not seeking reparation. Solely for love of their fellows, for whom those who are truly free often sacrifice their own cause, they even suppress the resentment that demands reparation. .

586. The fact that there are people who resent authority because they lack control of their passions and do not have real dominion of themselves is not a source of objection. If they really need to be directed and governed, and are totally incapable of governing themselves, they cannot have a right to freedom. In this case the symptom of resentment is false.

587. But objections of this kind show that our theory and what we said about the jural possession human beings take of themselves has been misunderstood.

588. Jural possession and dominion over self is different from the moral possession and dominion over self which is described by moralists as an effect and characteristic of virtue.

589. Jural dominion is simply a faculty, a dominion in potency, by which human beings themselves know and desire to be free to do as they please; this is jural freedom, which pertains to bilateral freedom. Moral dominion is a virtuous habit, a dominion in act, exercised habitually by a good will over the lower faculties; it is what I call `freedom of intelligence'.(163)
Whenever we wish to be free to do what we like, we do neither good nor evil. This faculty, which we claim for ourselves, cannot be impeded or taken from us unless we have partly alienated it or contracted jural obligations which limit it. To do the opposite would be an offence to our natural right. However, our right would not be offended if we were restrained from doing acts which abuse our power.

590. It may be objected that it is precisely the wicked with their great abuse of freedom who are quick to claim the use of their freedom. As I have said it is certainly true that to persuade a person to give into another for love of peace is an act of the highest virtue. This is equally true when we encourage submission as a result of diffidence towards oneself and the renunciation of one's rights for anothers good. It is also certain that the wicked person demands his right at the point of the sword, so to speak, because he is ignorant of such a generous feeling. But this is not a reason for denying him the existence of his right. If we did, we would in this case be unjust towards him, placing him in the right and ourselves in the wrong.

591. But, it may be objected again, he is asking for what he is going to abuse. Let us wait for the abuse to take place first, and then we shall be justified in taking steps to suppress it with the force our right permits. The freedom he demands, which can be turned to both good and bad, is not something evil in itself.
Our only guard against the abuse of such freedom is to exercise virtue and make people good. This is what enables them to use their rights well and to be more generous with their rights, preferring to give rather than exact what right demands. This is the sole, legitimate means of opposing any feared, but as yet unactivated abuse of freedom on the part of others. We assume that the abuse has either not begun or has not been previously revealed by its perpetrator. As far as I can see, rational Right does not, generally speaking, permit any other preventative means. But once the abuse has begun or been declared, the means used against it acquire by that fact alone the nature of repressive means.

592. There is one extraordinary consequence of all this: `The jural freedom of a person not bound by any agreement is as great as the person desires (note, we are speaking about freedom, not licence, about something good in itself, not about its abuse).' Therefore: `Rational Right prescribes that individuals or peoples who claim greater freedom should gradually be granted it.' Retaining constantly an unaltered portion of power over people is contrary to Right itself. Power is not apportioned like a piece of land whose owner holds it within fixed boundaries that cannot be altered without harm to the owner.

593. Judgment about dominion over human beings has up to this point been made as though it were the same as dominion over a piece of land: once dominion has been obtained, it is, according to this opinion, an ownership with unchangeable limits; anyone trying to restrict these limits would be committing rebellion.

594. This is an illusion, a consequence of not bearing in mind the immense difference between ownership of an irrational object and ownership of a rational object. Ownership of an irrational object always retains the same limit because an irrational object can never possess itself; it is passive to others' right. On the other hand, ownership of a rational object changes because the object in this case possesses itself, is the first occupier of itself and can only be possessed to the extent that it has not taken possession of itself, which it does gradually. This is the extent to which it can be possessed provisionally by another as long as the real master does not use what is his own. In this case, others can use it without harming or upsetting him.(164)

595. This teaching is the key to understanding political revolutions, and explains all the various forms of government.

596. Power and people follow different systems of Right. The former holds to a system that fixes an unchanging limit to dominion, as it does to material ownership. The latter, guided by a certain intimate sense of human nature, follows in practice the opposite system. The former is the opinion of erudite philosophy and of lawyers; the latter, the manifestation of the consciousness of humanity. The result is a great conflict between theory and practice.
Our teaching, however, brings about the reconciliation of both, and lays down a firm foundation for peace in the world.

597. We can confirm our teaching by another observation. Frequently a person saves another's life by rescuing him from a fire or from drowning. This, however, does not give the rescuer any right over the person he has saved. On the other hand, anyone who saves a baby and rears it as his child believes he has acquired a certain right of authority over it.
The difference between the two cases is obvious. Saving someone from death is not in itself taking possession of the person; it is an act of kindness. But taking in a child to care for it and make it of service to oneself is to take possession of it and make use of the faculties and powers which the child cannot yet use.

598. In the first case there is clearly no possession for the following reasons:
First, the rescuer is totally intent on the rescue and finds great satisfaction in doing it; he is not thinking about his own interest. The intention of making use of the rescued person for his own advantage is absent.
Second, even if this intention were present, it would not be sufficient for taking possession. The individual would not be occupiable unless he were an abandoned child or insane, in other words a person lacking jural government of himself. Only in this case could the rescuer take him in and keep him as something of his own.

Human beings, therefore, in their behaviour towards an adult saved from death or a baby given a home, show total agreement with what we have said.

599. The benefactor can require from the emancipated child restitution for the expenses necessarily incurred for the child's advantage.(165)

600. He can require this restitution not only from the adult child but also from anyone whom he may have saved from death at the cost of loss to himself.

601. A person who has been rescued and a foster- child have this sole jural duty, the credit of which can consequently be exacted even with force.

602. Some questions now present themselves, and it will be helpful to pass comment on them.
First Question. An adult may prefer not to receive aid rather than incur the obligation of repaying expenses; either he does not see the gravity of his danger and hopes to extricate himself without any cost, or he may resist for some other reason. This kind of reluctance to receive help is impossible for a baby, but it can show itself when the child has become adult. According to rational Right, therefore, can someone be saved who refuses to be saved? And if he is saved, is he bound to compensate the losses necessarily sustained by the rescuer?

603. The first question is contained in a more general question: `Can good be done to someone against their will?' The reply is very extensive in its application.

604. Authors who hold to strict right unhesitatingly say `No'. But we must note that if the question is resolved by a cold, absolute negative, it follows that a great number of regulations of civil law, enforced without or contrary to the assent of the individuals to whom they refer, violate rational Right. If helping someone against his will were absolutely an infringement of his right, the good obtained would also be unjust, when done both by one individual against another, and by a society against an individual.

605. This alone must give rise to a persuasion in favour of the opinion that doing good to someone against his will is not an injury.

606. This is really a corollary of the third characteristic of right(166) which requires a good as the object of right if a right is to exist. Thus, anyone who refuses a good acts outside the sphere of right because the action does not have good for its object; a right to evil or to refuse good does not exist. Resistance to this kind of unjust will cannot therefore be injurious to anyone.

607. This opinion however can be clarified by dividing it into parts based on some necessary distinctions.
First, we must distinguish the abstract question, `Can good be done to someone against their will?', from the concrete question, `Is it true that in any particular case I am really doing good to the person who refuses the help offered?'

608. The solution of the first, abstract question is much easier than that of the second, concrete question; the first is not accompanied by the many different circumstances of the second. Concrete questions must be solved by considering all the factual and frequently accidental circumstances surrounding them.

609. Moreover, the difficulty in solving the last question increases with the need to solve another question first: `Who is competent to judge what is good or bad for a person?'

610. If we begin with this question and consider rational Right alone, I have to say that `the person for whom these things are considered good or bad is the competent judge.'

611. We must note however that the competence of the judgment does not free the judge from the obligation of pronouncing a just sentence. Competence is too often confused with justice; too often we suppose that a competent judge can pronounce as he likes, and that everyone must submit fully to his sentence, from which there is no appeal. On the contrary, I maintain an appeal is always possible provided that it is made to truth and justice whose tribunal has an unprescribable right to overrule the contrary sentences of every other tribunal.

612. The only usefulness I attribute to the tribunal of first competence is that whenever there is doubt, its sentence should prevail, that is, whenever there is no clear evidence that the tribunal is mistaken - but with one limitation: the doubt (which remains independently of the decision of the competent tribunal) must not expose me to the danger of doing something intrinsically evil. In this case we have to hold to the safe course which ensures us that we are not sinning.(167)

613. In our case therefore madness, idiocy, sudden rage and unusual, confirmed criminality can be clear and sufficient indications of the falsity and error of another person's judgment. In these circumstances, not even a competent judge can pass an authoritative sentence.

614. Consequently, it is clear that without doing any harm whatsoever I can prevent someone attempting suicide, even if my effort is against his will and seen as harmful. I can hide food and drink from a drunkard, even though it is his property, when he is looking for it in his drunken state. I can do any obviously helpful action to someone who is wrongfully refusing my help. The refusal itself is proof that the person is mentally ill and unable to judge.

615. There are undoubtedly cases where the maxim of doing good to others and preventing evil is verified in practice not only without, but against the other's will. It is in fact a kindness, not harm.

616. To the second question, `Does the benefactor have the right to restitution of the loss sustained in rendering assistance?', the answer is clearly `Yes'. This is true at least if the recipient of the kindness has in fact benefited, that is, has received more than is claimed from him by title of restitution.

617. This reply is based on the very nature of personal possession. Anyone who has helped another and lost something essential, for example, life, education, etc., could willingly either donate or lend what is his in order to procure the same good for the other. If it was his intention to lend it, he is still beneficent to the one to whom he lent it, because he had no jural obligation to make the loan. Thus, if he obtained for the other a good equivalent to 100% and lost only 10%, he could take the 10% back leaving the 90% to the advantage of the benefited person.
This is clear, because a person who is not obliged to give anything of what is his, is free if he wishes to give 90% rather than 100% - it is within his jural freedom to determine the quantity of his beneficence.
The benefactor therefore can take from the beneficiary sufficient to repair the loss he has suffered. But it is also clear that the beneficiary has a jural obligation to make this restitution.

618. Second question. How must this restitution be made? Can the benefactor retain authority over the beneficiary until the latter through his own efforts has made restitution for the losses necessarily sustained on his behalf?

619. The question can refer to both true and foster fathers. The rights of true fathers over their children will be discussed in the next chapter. Here I will speak only about those previously mentioned who simply foster a child, and about benefactors generally.

620. If we are considering the nature of ownership purely as ownership and not as right,(168) we have a case of res clamat ad dominum [a thing calls for its master] interpreted so strictly that neither extension of time nor any respect for the debtor is allowed; the owner is justified in claiming his possessions with all expedition and in the way he wants. But the case is different when natural ownership assumes the noble quality of right. We must always bear in mind that right is moral, in itself and in its exercise. Its exercise is entirely hedged about with moral obligations, which certainly require us to safeguard ownership, but in the way least harmful to others.

621. Granted this, the creditor, in virtue of his right, can claim:
1. To be paid in full,
2. To be paid promptly, although allowing reasonable extension of time for the debtor in difficulty. If the extension causes any harm to the creditor, the harm must be compensated.
3. To be assured that the extension he grants does not make the payment of the debt less certain.

All three rights concern the creditor relative to the debtor.

622. The first right is clear in itself; it needs no discussion.

623. The second presents a very difficult and delicate question: `What extension of time must the creditor grant by natural Right to the debtor so that the latter can pay?'

624. First of all, it is clear that if the debtor is able to pay, the creditor has the right to be paid at once.

625. But if the debtor lacks the means of payment (for example, a child taken in care) what time must be allowed for payment? No Right exists, of course, to require that the debtor pay what he does not have.

626. The answer must be: `The time is to be at least as long as is needed for the debtor to obtain sufficient with the use of his faculties to pay the debt while allowing for his support.'

627. But there are different ways in which he can work to obtain the amount necessary to pay the debt. Can the creditor require that the debtor choose the work which will allow him to scrape together as quickly as possible what he owes?

628. He must certainly apply himself expeditiously to satisfying the debt, and to the upmost of his ability.

629. Consequently, if he showed obvious, voluntary and serious negligence, the creditor could undoubtedly require him to do more.

630. He could suggest a more expedite way of earning money and require that the debtor use this way. The work however must not be too much of a burden, or harm the debtor's bodily health, or do any other serious harm. In other words, the creditor can only require the debtor to make an effort compatible with human nature and proportionate to his forces, and thus without detriment to self. Insisting to the detriment of the debtor would be an injury and violation of the debtor's right.

631. The competent judge for deciding whether some particular task is beyond the natural forces of the debtor, is the individual who must perform the task. The same person is also the competent judge for deciding which among the tasks proportionate to his natural forces is more profitable and better suits him, with due regard for his natural inclination which is an indication of stability and an augur of success.

632. The only appeal open to the creditor against these judgments is that which everyone has against an unjust sentence of a competent judge, which we discussed above (cf. 611-612).

633. Hence, we see why it is unlawful for the creditor to confine the debtor and keep him in his employ against his will. This can be done only when the debtor shows by words and facts that he is unwilling to pay, in which case the creditor has the right to use force to obtain satisfaction.

634. But does he have the right to be firmly assured of his credit? And how can he have sufficient guarantee if he leaves his debtor free? In the natural state, and if we exempt the case where the debtor is guilty of bad will, the right of a guarantee for the creditor extends only to a guarantee that does not harm the debtor.

635. If the debtor cannot provide a guarantee without suffering harm, the creditor must be satisfied with his word.

636. The creditor would therefore be committing an injustice if he claimed to keep the debtor in prison or in his employment until he had worked off what was due. Such employment would be detrimental to the debtor, retarding his free development and harming the plans he might have or make for the future. Thus, although the jural duty to the creditor of a debtor who is unable to pay is to apply himself as best he can to earning what is owed, this duty does not require him to bow to the work imposed by the creditor, except by agreement. The creditor's right extends no further than this. The debtor's clearly expressed will to fulfil this duty must be sufficient pledge for the creditor, who has no cause for thinking his fellow human being lies. But if he does discover that the debtor is lying, he has a new right, the right of guarantee owed by bad debtors, and generally speaking, by offenders. I will speak about this right later.

637. No definite year or time can be assigned for this stage, because children attain possession of their jural freedom at varying rates.

638. JURAL RESENTMENT, the only natural symptom telling us when a child has reached this moment has already been discussed. This is not the resentment a wayward child manifests against good discipline and against the order of life imposed upon him, nor his opposition to what he is commanded; it is the uncomfortable feeling he experiences relative to the command, as if the command were some kind of superfluous intimation. This kind of reaction must have its origin in the internal consciousness of his own ability to act reasonably and properly.(169)

639. Jural resentment, felt by people held in subjection and experienced naturally when subjection is no longer needed, can be overridden or mitigated by solid moral virtue. In this case they willingly honour their benefactors with their spontaneous subjection, and thus by following the benefactors' guidance, better assure the uprightness of their own behaviour. Here the only indication that they have taken or can take possession of self is wisdom in thought and actions.

640. I say `when they have taken or can take possession of self' because taking possession must be carefully distinguished from simply being able to take possession.

641. Simply to be able to take possession of self, we need know only the beneficial and harmful consequences to ourselves.

642. But to take possession of self in reality we need an act of will: we must will to act of ourselves and apply the foresight we have already acquired to the effects of everything we will do.

643. Hence, those who are mentally sound and fully developed and know as well as others the consequences of their actions may, because of their goodness, remain subject to father or benefactor. Nevertheless, although they have not yet really taken possession of themselves, they may do so whenever they will.

644. However, we want to know the age at which human beings can take possession of self, whether they do so or not, because the choice is entirely theirs.

When can they do this and claim to be allowed to do it?

645. First of all, it is clear that we cannot determine exactly the time when we know the consequences of our actions, as we have said. This knowledge does not occur at a given hour of the day; on the contrary it comes about slowly and gradually.

646. Human beings begin as babies to calculate the consequences of their actions: even in old age they never complete their study, which is so vast that it exceeds all human forces.

647. If the knowledge we require of the consequences of our actions is restricted simply to the knowledge attained by the majority of us after adolescence, we have ipso facto determined the degree of knowledge recognised by civil laws when they prohibit or allow the free exercise of our civilian rights; they either provide for the care and protection of those who seem to lack the ordinary degree of foresight or they free from care and subjection those who seem endowed with foresight.

648. But civil legislators recognise a gradation even in this measure of knowledge of the consequences of our actions. Thus the knowledge necessary for us to be civilly declared capable of acting in our own right is acquired only little by little. Legislators command that people be gradually admitted to the exercise of their civil rights.

649. For this reason the best known civil codes distinguish three kinds of human beings, who through lack of age are deprived of the full exercise of their rights: babies, who are denied all exercise of their civil rights; children who have not reached puberty, who are granted only a part; and minors, to whom a greater part is granted but not the whole.(170)

650. According to many positive laws, majority is reached when the human being is fully emancipated from patria potestas, if nothing else intervenes. But what is the age of majority?

651. We cannot establish it for all times, or for all peoples, or for everyone(171) at the same time in the same nation I repeat, a fixed year or moment in nature does not exist in this matter.

652. Nevertheless civil legislators have to fix an age, and they do so by choosing the moment when a particular year of life ends and another begins. Which year therefore can be determined for everyone alike?

653. Because human beings reach the age of majority at different times, legislators must take an average year which they establish for everybody. This necessarily means that those who attain the required level before that moment must wait to be emancipated; those who have not attained the required level at that moment are considered to be in possession of self, although this is not actually the case.

654. How do the legislators calculate and determine this average year?

655. They cannot all agree because they have to calculate an average, and this can only be obtained by approximation or estimate.

656. Thus, Roman laws required the completion of the 25th year for legal majority. The Austrian code requires completion of the 24th year. The French code, and those that follow it, are satisfied with the 21st year. The Constitutions of 1770 of the king of Sardinia, and the present code of the Canton of Ticino, reduce the age of majority to the completion of the 20th year. These differences of opinion indicate that in the view of modern legislators people today generally speaking take possession of self somewhat earlier than those considered by the ancient legislators.(172)

657. But let us leave aside positive regulations; we have mentioned them solely for the purpose of knowing the kind of rational Right which secretly guided the minds of legislators. It was indeed this right which dictated positive laws, and the founders of these laws have, in my view, great authority. Instead, we shall see what nature itself has to say about the age when human beings can terminate their subjection to others, and when dominion over those held in possession ceases to be just.

658. We shall return to the example we have already used, continuing the comparison between the possession of an irrational thing and that of a human individual at the infant stage. These can be likened to two vases owned by the same person, one of them full of money, the other filled with a spirituous liquid. When the owner comes to inspect them, he finds the first still full but the second empty, not because its contents have been stolen but because they have evaporated. It is the same with the two things under discussion: material things are stably possessed, but the human person (a spiritual nature), which does not allow itself to be possessed permanently, escapes all unseen from the possessor. The person is not snatched away. What is possessed removes itself by the use of what nature has given it; like the spirituous liquid it disappears little by little and the owner cannot complain.

659. Anyone who considers this teaching will see that it has important, useful corollaries.

660. First of all, it takes for granted the great principle that the quantity of right (that is, jural freedom) is equal to the amount of knowledge we have of the consequences of our actions.(173)

661. This principle is admitted and supposed by all civil legislations,(174) when it is applied to human beings coherently and courageously (courage is always necessary for one who wishes to be coherent). Our first conclusion therefore is that, absolutely speaking, no one has full and absolute jural freedom. None of us can claim to know all the consequences of our actions only God sees human actions with their whole infinite series of consequences.

662. Relative to God, therefore, we are by nature minors; jural freedom is not proper to us.

663. This explains the supreme gospel precept which imposes `not our own, but the divine will' as the necessary rule of our actions. Thus Christ, the archetype of human perfection come down from heaven, declares, `I have come down from heaven, not to do my own will, but the will of him who sent me.' (175) Will, freedom, right do not exist in us relative to God; God alone is free and lord because he alone is wise.

664. Consequently all the jural freedom we have in respect of other human beings is a relative freedom.

665. According to natural right, human beings are mutually free only in so far as we have an approximately equal amount of knowledge and of foresight of the consequences of our actions, or at least in so far as we must presume this equality of knowledge of consequences in each other (unless the opposite is evident). We cannot judge, without reasonable evidence, that someone has less knowledge of the consequences of his actions than we have; we all have the same human nature and can competently judge what is helpful or harmful to self.

666. We can say with complete certainty that only the supreme Being, who knows all the consequences of every action, can decide who among us comes closest to a correct judgment of the totality and result of the consequences, and who is most mistaken in that judgment.

667. Generally speaking therefore we must judge that we all have equal knowledge of the consequences of our actions. This presumption is a foundation of civil law for all those considered capable of every act of civil life.

668. Laws are not based on the supposition that people have full knowledge of the consequences, but solely on the supposition and presumption that they have an equal amount of knowledge. This equal amount of knowledge of the consequences of our actions becomes therefore the basis of the civil-juridical equality of human beings.(176)

669. But the equality of knowledge of the consequences of our actions cannot always be supposed, because the supposition ceases in the face of the obvious truth, just as the authority of a competent judge ceases in the face of obvious justice.

670. Supposition of this equality ceases therefore as soon as certain proof shows that someone cannot rightly use his reason.

671. Hence civil laws make an exception to the rule for minors, the mentally incapable, the insane and even for wastrels.

672. Furthermore, civil Right cannot take account of all the levels present in reality in natural Right concerning the proofs which indicate different amounts of knowledge of the consequences of one's actions in different individuals.

673. The laws must therefore be restricted to determining the more obvious levels, and neglect innumerable others which, even if determinable, would multiply the positive regulations ad infinitum and make their application very difficult.

674. Civil Right is also limited, as we have seen, by the necessity of determining an age when everybody is considered as having attained the full exercise of their rights. This age is non-existent in nature, because human beings do not attain the same level of knowledge simultaneously. We will see later if the civil legislator can fix this age for everyone without offending natural Right.

675. For the present we can conclude as follows: 1. A child takes possession of self little by little as it grows older. Consequently natural Right requires the foster-father to gradually allow the child more freedom in using its powers, especially if the child itself wants its freedom.

676. 2. Full freedom can be due to the child before or after the age of majority; in certain cases it is never due.

677. 3. Respect for old age and a certain dependence of the young on their elders (dutifully acknowledged throughout the centuries and by all peoples) has its foundation in natural Right, and thus acquires a jural characteristic. Natural Right requires that the extent of the exercise of each person's freedom must be relative and proportionate to the level of knowledge each has of the consequences of his actions. It is clear therefore that generally speaking the experience acquired by older people in their long life gives them a greater degree of foresight and consequently a greater right to exercise their freedom, because they have a wider sphere for exercising it. This means that in every younger person a corresponding limitation of the exercise exists and that younger people are to some extent dependent on and subject to their elders.

678. This is one of the reasons for the ancient authority of the first-born over the other members of the family after the death of the father, and for their precedence at home even during the lifetime of the parents.

679. 4. For the same reason the superiority of the more intelligent, perspicacious and prudent over the less intellectually gifted (verified in all nations and recognised as good) must not be considered unjust but in conformity with natural Right which, relative to all the consequences of our own or others' unseen actions, requires us to submit to and allow ourselves to be guided by those who see and weigh the consequences carefully, just as the blind must accept the guidance of the sighted, or a ward accept the care of society. Viceversa, those who can weigh remote consequences have the right to choose the results of their reasonings in preference to the results of persons who can only weigh proximate consequences. A prudent person, certain that another is mistaken about the final good or evil, can oblige the other to act in such a way that no harm is done through inexperience or shortsightedness.

680. 5. When the principles themselves are applied to relationships between nations, which are social bodies in the state of nature, one nation can justly exercise authority over and influence another, and up to a certain point can subjugate the other, provided the results are good, or at least not harmful, to the subjugated nation. In the same way, a nation can claim from another what is helpful to the latter or at least not harmful, and is helpful or at least not harmful to the claimant. Consequently the fact, repeated on every page of history and read every day in the media, that nations which are Christian, moral and civil lord it over infidel and barbaric nations must not be ascribed indiscriminately to usurpations by force and gain by cunning. On the contrary the fact, considered globally and not always in its accidents, is a natural effect of a Right not discussed by philosophers but fully and clearly manifested in intelligent creatures whom it guides with a hidden and powerful influence [App., no. 2].

681. Although all these teachings (denied, as to be expected, only by philosophers) find irrefutable support in human consciousness, their application is clearly very difficult.

682. Because they are defined not as mere moral duties but as jural obligations obtainable by force, an educator or a elder or someone of great insight could forcefully bind a pupil, a junior or someone of limited vision to a certain degree of subjection, relative however only to certain acts dependent on age and particular circumstances. But it is impossible for us to define in practice the degree of this subjection and relative authority; it varies almost each day and hour according to different intellectual states. We have no rule for determining this degree of servitude.

683. On the other hand, even if the degree of servitude and that of seigniory were indefinable in the state of nature, the principles of justice established above would still remain true. Although the application of these principles may be very difficult, they are true and right, and must be accepted with all their difficulties. The difficulties are an indication of human limitation, not an argument against the truth and rightness of the principles. Anything found in nature as a fact or inscribed on our reason as a necessity and a law of the world of ideas cannot be rejected on the pretext that it is too difficult for us to use. With such limited, feeble vision we cannot be so reckless and insane as to persuade ourselves we are able to change external things and alter the principles of reason. Yet we vaunt our irrational recklessness precisely at the moment our consciousness reminds us deep down of our own nothingness. I feel compelled to speak like this because of the very frequent objections we hear against the truth, and against virtue: the truth is difficult and impossible, it cannot be applied, it harms. Prudence, it would seem, requires us to hide the truth and not speak about it because, when taught, it can be misunderstood! No thanks are due to the light of this century as it grows dim under the influence of such hesitant and dismal human prudence.

684. But let us move on and investigate whether, in the cases discussed above, it is really impossible to know when force can be applied without offending another's right. Determining this `when' must be a very noble and important investigation despite the great effort it demands. To indicate even a few points which make the way more secure for others will be no mean achievement.

685. I have given two indications which show when a person has taken possession of self.
1. The first consists in proofs of intelligence and wisdom which show us whether the person is as aware of the consequences of the action or actions in question as the person to whom he is subject.

686. If so, we can see that the person, relative to the particular action or actions (we need not speak about all actions, because we want to determine the successive levels, not the totality, of his emancipation), is capable of governing himself and has the right to do so.
2. The other indication is the jural resentment manifested against acts of subjection.

687. This shows us that the person has not only the right to govern himself but has in fact taken possession of self, wishes to exercise self-government, and renounces nothing of that which comes to him by right.

688. The following maxims result from these two indications: 1. If a person is content to be subject to another without resentment or displeasure, it means 1st. that he has not yet attained the usual ability to govern himself or 2nd. is not conscious of it. It can also mean 3rd. that he feels his own ability to govern himself is overridden by the wisdom of the one governing him so that he willingly remains subject for his own utility or 4th. that out of a feeling of justice or generosity he cedes the government of self in the things prescribed him by placing acts of gratitude and love before the exercise of his own rights, that is, of those rights which he can forego.(177)

689. 2. In the first case, where the subject has not yet obtained the ordinary ability to foresee the consequences of his actions relative to the actions in question, the superior can certainly maintain his authority.

690. 3. In the second case, where the subject has the ability to govern himself but is not conscious of this or does not think about it, the superior can maintain his authority without damage. But he must be convinced of his real ability to direct his subject relative to the actions in question or, better, be convinced that his subject would not do them so well or even do them at all. Only in these cases does his guidance do no harm.

691. If the superior did not do this, he would sin against morality and, if harm resulted to the subject, against right.

692. The obligation of restitution would still remain even if the subject did not require restitution or know that he had a right to restitution. We cannot and must not presume that a subject agrees to losses incurred of which he is ignorant. Nor can one person's waywardness ever be the source of harm to others' rights.

693. 4. The third case, in which the subject submits for his own utility, because he is persuaded that his superior will direct him better than he could himself, is solved in the same way as the second case (cf. 690-692).

694. 5. The fourth case, in which the subject really foregoes his own right because of affection and virtue, is also resolved in the same way as the second. If, however, the subject has greater wisdom and intelligence than the superior, the superior sins by retaining guidance of the subject, because he clearly knows he does harm to the subject by doing so. In this case, the sin would be moral not jural because of the subject's tacit renunciation of his right (cf. 134-138).

695. This should be the only comment possible in this final case because guidance here is in itself upright and, of course, in good faith. If, however, the harm resulting from the extension of the guidance beyond the required time were caused by the superior's wrongly wishing to draw profit for himself from his government of his subject, irrespective of harm to the subject, such a heartless deceit would require restitution and could always be resisted and punished.

696. In all these cases we have supposed that the person lives peacefully and quietly subject to the other's guidance. But let us now suppose that in all four cases the subject resists and wishes to rid himself of the yoke. When and how does the superior have the right to use force to keep him in subjection, and when must he grant him his freedom? - We are not speaking about universal freedom but freedom particular to one action, then to a few, then to many, and gradually to all actions. As we have bserved,(178) every action is the object of a right and can itself be a separate case.

697. In the first case, where the person does not know even the proximate consequences of his actions and would do harm to himself by acting on his own, the superior can use force to make him obey if he resists, provided the obedience concerns an order of things which have the good of the subject for their purpose, or at least concerns something which in no way harms him.
In this case the individual's resistance is not jural resentment but displeasure at doing what is commanded because it is contrary to his feeling, instinct, habit and desire, not because he feels it as harming and obstructing his legitimate freedom.

698. The second and third cases concern a subject who has already attained knowledge of the consequences of his actions (which are generally calculated according to the utility or harm they might do) but is unaware of this knowledge or considers it inferior to his superior's. It is clear that if he withdraws himself from subjection, he is acting on what is false, not on a truly jural title. However the superior who is unable to verify the falsity of the title on which the subject bases his request because it lies concealed in his spirit must accede and allow the subject government over self. The superior is obliged to presume that the request is just in itself and justly thought out by the petitioner.

699. We would do well at this point to consider the rights generally arising from the relationship between one who has greater foresight and consequently is naturally superior and one who has less foresight and is therefore naturally inferior. These rights are present at nearly every moment of our lives and yet have not been observed and listed by philosophers. We must therefore ask some important questions about them.

700. First: can a person with greater foresight use this foresight, even with force, to avoid the harm he would experience by leaving his subject free to direct himself with less foresight? Can he do this if the subject, acting without malice or entering his sphere of ownership, has simply not foreseen an indirect, remote but inevitable consequence of his action?

The question supposes that the only harm done to the subject by the superior's use of force is to hinder the freedom claimed by the subject, who believes he has a right to his freedom or wishes to do as he pleases.

In my opinion the case as stated within these limits allows the superior, after counsel and exhortation have failed, to use force to constrain the subject to do or omit what does not harm himself and prevents harm to the superior. Jural resentment can certainly show itself here, but only because of the mistaken belief that one's rights are infringed.

701. In fact the problem is often settled as follows: older, senior people, and people of great perspicacity who frequently find themselves able to persuade or force others to do their will, use these means without scruple, persuaded that, if no harm results, they are not doing any injustice to anybody whatsoever. The royal Right of nations offers many similar examples.
The great problem of intervention or non-intervention can be fully resolved only by the application of the above principles.

702. Second: `Under the same circumstances can force be used by someone whose purpose is not to avoid harm but to obtain some good for himself?'

703. We must reply `No'. It is true that I can constrain others to forego activity whose consequences would be harmful to me, but it is not true that I can expect others to act advantageously in my regard when the consequences of some other activity are harmless to me and advantageous to them. Their only jural obligation is to avoid harming me; they are under no obligation to do me good.

704. Third: `Can force be used under the same circumstances not to remove something harmful from oneself or obtain something advantageous, but to remove harm from, or obtain a definite advantage for another who would be subject to the harm or lose the advantage solely through ignorance and lack of reflection, not through malice or opposition to what is good?

705. Common sense, and all legislators who follow common sense, constantly affirm that this can be done in the case of children, the insane and wastrels.

706. We must note however that civil laws do not deal with all the cases where the exercise of superiority is required if the subject is to benefit and the humanity of the one who is superior in mind and force is to be satisfied. Nevertheless, such cases do exist in nature, and rational Right acknowledges them at every age of life and in every relationship between wise, discerning persons and persons of little discernment. These cases have definite limits and involve a kind of coercion which causes no harm, not even indirectly, except the privation of freedom.

707. In no case are we concerned with unlimited coercion, or any kind of violence which may do initial harm to others under the pretext of doing them good afterwards. Removing material freedom in the case under discussion does no harm to our subject; this freedom ceases to be his of right. Consequently even his jural resentment proves nothing, because it is certainly founded upon on a false persuasion. Nevertheless, if the resentment were very deep, it would have to be respected because it implies profound pain and therefore the presence of harm and injury.

708. In all these cases, the difficulty consists always in verifying in the action itself that one person's foresight is greater than another's. This raises a further question: `What degree of certainty must the person have whose title to the right of superiority over another is based on his greater foresight?' Note that we are discussing a superiority exercised in a special case, not a general superiority - we are persuaded that the other person has mistakenly calculated the consequences of his actions, and that we have not.

709. The answer varies: are the harmful consequences(179) to be removed from us or from the author of the actions?

710. It also differs according to its harmful or advantageous consequences.

711. If I have good reason to fear harm to myself, I have the right to avoid it, even though I am not fully certain about it. This is always the case when harm is more likely than not. My right to avoid it increases, and the amount of probability necessary to take just precautions decreases, in proportion to the extent of the feared harm.

712. If, however, the person who acts without foreseeing the consequences of his actions, is liable to harm, I can in the first place always warn him about the evil. But I cannot use force to stop him doing harm to himself except when I am certain of the damage, and solely on condition that the violence I must use to stop him acting imprudently does him no harm other than oblige him to act differently.

713. The difference between the two cases depends on the principle that `in natural right each of us is the competent judge of our own evil and good'. An appeal against a competent judge is possible when there is moral certainty to the contrary but not in case of doubt. Thus, in the first case I am the competent judge about harm to myself; in the second the one who acts is the competent judge about harm to himself. Even if I am doubtful, I must respect the other's decision; otherwise I violate his right of competence.

714. For the same reason I cannot restrict another's freedom simply in order to bring about consequences useful to the agent if he does not want anything useful from his actions. We all have the right to renounce any good where privation does not produce natural harm but simply a lack of an unnecessary good.

715. 6. Finally, in the fourth case where the subject overrides the superior in foreseeing the consequences of his actions, the superior may not use force to maintain his superiority against the subject's will. The latter can be free because he has sufficient foresight to be free, and is free as soon as he desires. Resistance to his just will is, generally speaking, a violation of his right.

716. I say `generally speaking' because those who know the consequences of their actions can generally be presumed to use their foresight for avoiding every evil and procuring every good for themselves and others. This happens whenever a person is not only sound and prudent of understanding but sound and upright of will. If, however, people abuse their foresight because of malice and cause moral or eudaimonological harm to others, it is clear that persons with the same foresight, even when threatened indirectly, can defend themselves and others from evil provided the defender is certain about the evil. But in this case we are no longer talking about right of superiority but of defence.

717. In conclusion therefore we can say: 1. The right to exercise one's natural freedom results from three elements:
a) foresight of the consequences of one's actions;
b) the will to use this foresight for guiding oneself;
c) moral soundness of will.

718. 2. The acquired right to exercise one's free will must be classed among the rights we have called `relative',(180) because it is impossible to assign an absolute, general degree of freedom.

719. Hence, the degree of freedom due to human beings by right must be derived solely from their relationship with other persons as a result of the three elements we have mentioned. For example, John, who is free relative to James, can be a subject relative to Paul and a natural superior relative to Michael; these three states of subjection, freedom and superiority can change at any moment. Right is posited by the fact constituting its title. Thus if the fact changes, so does the right. In our case, the fact is 1. the existence of a relative amount of foresight of the consequences of one's actions possessed by different people, and 2. the existence in them of a morally sound will. The relationship which the different amounts of foresight and will have with each other constitutes, properly speaking, the root of the acquired right of freedom considered in its exercise, and the relationship it assumes in different people.

720. As we have said, all rights whose object is the exercise of external freedom are relative and consequently variable; there is no determined moment in nature when a child and, much less, all children enter into the full exercise of their freedom. What authority therefore enables civil laws to determine precise stages when all citizens enter equally into the free exercise of their rights? It would seem that such laws contradict natural Right by injuring both those to whom nature gives possession of self prior to the legal moment and those whose entry is delayed by an underdeveloped nature. It is an important question, which we propose to solve in this Article.

721. The first response, after a cursory glance at the question, would be to condemn this kind of positive regulation. No human authority can ever oblige an individual to forsake the possession of himself given by nature; it would be an unjust, empty judgment. On the other hand, an individual who has not yet been given possession of self by nature, cannot be made by human law what he is not. Moreover, if someone is allowed an exercise of their freedom greater than they really have by nature, all others are injured. As we have seen, each person's freedom must be measured by the relationship it has with the freedom of others (cf. 719).

722. This teaching might be welcomed by a philosopher devoted to paradox, but it would still be false; positive laws can and must be justified in this case.

723. I do not mean that civil laws have reached their perfection in any particular country. On the contrary, I think and have often said(181) that much remains to be done to perfect positive legislation. Every line of this book points to this.

724. Nor do I mean that the perfection of civil laws can ever reach a point where they faithfully proceed hand in hand with rational Right. On the contrary, we could probably show that it is impossible, strictly speaking, to allow citizens the exercise of freedom in civil acts at exactly the moment when nature grants it. Amongst other things, we would lack the means for knowing with certainty the infinite degrees by which an individual takes possession of self. But I do not wish to discuss this problem here.

725. What I wish to say is that we must not claim instant perfection for positive laws. Indeed, we can never claim they attain an absolute, invariable perfection, precisely because 1. positive laws are the work of human beings, and 2. in order to be perfect the laws would have to be changed, just as human nature is changed in its accidents, by means of society which is constantly in flux. Both are impossible: the first, because nature is immense and the legislator limited; the second, because nature precedes and the legislator can only follow. Thus, no matter how quick the legislator is, he will never catch up with nature.

726. Nevertheless, although we must not claim perfection for positive laws, rational Right still obliges us to renounce our own right when the imperfection of these laws disowns and removes our right. This is explained as follows.

727. Rational Right requires that we modify, limit and even partly renounce our right when we cannot exercise it in a certain way or to a certain level or in some definite circumstance without harming an innocent person. The obligation is both moral and jural, so that the offended innocent person could defend himself with force.

728. A special obligation springs from this general obligation: we must be ready to settle peacefully quarrels and problems arising between ourselves and others.(182) If in a case of doubt one of the parties refuses a peaceful settlement and is ready to use violence, he would offend the other's right and could be forced to submit to arbitration or any other peaceful and just means more acceptable to him.

729. However, jural obligation is clearly not present if it is obviously a question of intolerable bullying or deception in bad faith. But this obligation is present 1. if the question is doubtful or certainly difficult to solve in itself, and 2. if it is doubtful for only one of the two parties, provided the doubt is in good faith and cannot be settled by reasoned discussion.

730. Laws made for all the members of a civilised society are acknowledged as the best means for settling pacifically the problems and quarrels which can arise among the citizens.

731. By `best means' I understand those in which the portion of natural rights sacrificed by the members of a civilised society is the least possible. Let us imagine that in certain circumstances individuals have to sacrifice a small part of their natural rights for the sake of peace and mutual respect. The sacrifice I am referring to is the sum total of all the losses and gains that occur during a person's lifetime. As in a game of chance, this sum is with equal probability as advantageous or disadvantageous for one party as for another. If therefore the sum is the least possible, the means used to settle these problems will be the best possible. And this is precisely how people of all ages have considered the means used by universal laws, to which all submit themselves with an equal chance of profit or loss.

732. Positive laws, therefore, as the means for preserving the highest possible sum of natural rights by the sacrifice or rather the transformation of the least portion of these rights, is that means to which, by jural obligation, we are all obliged to submit. It is clear that the general obligation we have explained above gives rise not only to the special obligation we are under to resolve questions peacefully, but also to the other special obligation `incumbent upon each member of a society to be satisfied when a dispute is settled by the most equitable means available for preserving the greatest portion of rights for everybody.' Because this obligation is by its nature jural, it can be upheld with the sanction of force against those who refuse to fulfil it.

733. Everybody therefore is naturally obliged to accept civil laws in possible controversies (unless the parties come to agreement some other way). This may require the sacrifice of some part of the good which would be our right by nature, if nature itself had not withdrawn in part by imposing on everybody the obligation we have explained.

734. But is this true in the case of imperfect laws? Although generally speaking positive laws may be the best means for settling controversies and as such be obligatory for disputing parties who do not settle matters among themselves, are these imperfect laws necessary? Must we tolerate the injury which their imperfection causes to the natural rights of all?

735. The problem must not be confused. Our question does not concern the person in society responsible for drawing up laws. The legislator may be anyone; it makes no difference to our present problem, provided the positive laws we are discussing originate from a competent legislator. Granted this condition (without which laws are not laws), we see immediately two other self-evident natural, jural obligations which bind all those for whom the laws are made:

1. We can expect a competent legislator to make the best possible, but not necessarily perfect laws.(183)
2. We must all presume that the laws made by a competent legislator are the best he can provide, unless there is evidence that the legislator had his own interest at heart rather than the public's. Without contrary evidence a competent legislator or judge must be favoured before everyone else.

736. All the above obligations give rise to another jural obligation: every member of society must `submit to positive laws even at the sacrifice of a part of their own natural rights.' A part of these rights must in any case be sacrificed by each. The part sacrificed by submission to the civil laws is the least possible, all things beings considered, for each person and for all. In fact, strictly speaking, it is nothing for each person. Having accepted the laws, each can expect overall as much injury as profit; what is harmful to one is advantageous to another. Hence, because injury is compensated by the expectation of profit, no one is really exposed to injury.

737. In fact an individual's accidental sacrifice of a larger portion of his rights depends not on positive laws, which are the same for all, but solely on chance. Chance brings about accidents which subject a person to greater losses than others. In this case, the individual would have to resign himself in the same way as a person who has insured himself against fire has to resign himself to similar possibilities; he agrees to pay insurance to avoid greater loss. If the insured house is not burnt down, he has indeed paid for the other members, but he has no reason to complain. Before he knew what would happen, the danger existed equally for him and for the others, and he safeguarded himself by paying the cost of the danger. He cannot complain and withhold due payment if he now sees that membership is by chance harmful to him but profitable to another; he reasonably and duly accepted this possibility. In the same way, it is reasonable and dutiful that each member of civil society should accept the outcome resulting from the equal application of positive laws which form the best guarantee of the rights of all.

738. These principles concerning the necessity of positive laws, and their obligatory force founded in rational Right itself, clearly provide us with an adequate reply to our question: `Does positive law injure rational Right by determining stages at which everyone or nearly everyone begins of himself to perform civil acts?' We answer: `These laws do not by their enactment injure rational Right. Competent legislators (that is, legislators of all peoples throughout history) have always considered such laws necessary to safeguard the greatest possible part of the natural rights of seigniory and freedom present amongst human beings, and to ensure that whenever a portion must inevitably be lost or rather changed, it is the smallest possible.'

739. Civil legislators had a complex problem to solve. The following considerations will help us to understand it better.
First, we must not think that the families who united in new civil societies were capable of knowing all the advantages obtainable from association. They were ignorant of many of these advantages and thus unable initially to apply them all to the purpose for which they were uniting.

740. At first civil societies were particular societies, that is, they had a particular purpose, for example, mutual defence of life and possessions.

741. Their limits extended however as time passed. Little by little people saw that their association could obtain previously unnoticed benefits, all of which became part of the purpose of the formed society by which they could gradually obtain every known possible good.

742. This is one of the past and present developments that civil societies undergo. All these developments will need to be taken into account by the noble genius who writes The Philosophical History of Civil Society, a highly desirable work, which forms a large part of the History of Humanity.

743. As society gained new purposes, its nature changed, and so did the work of its legislators. The problem to be solved changed because its elementary data changed.

744. Here I cannot and do not wish to deal with all the different facets of the problem of seigniory and dependence resulting from the work of different legislators in the varying conditions of what we now call `civil society', a blanket name which is a great source of illusions and errors because society has never been one and the same. On the contrary there has been a succession of different societies which should really have different names. One day perhaps the author we hope to see will provide these names.

745. To avoid an endless task, therefore, I repeat that I am only discussing civil society in Europe, whose laws have as their primary purpose `the defence and protection of the safety and property of all its members, considered as heads of an actual family or seeds of a future family' [App., no. 3].

746. In civil society, therefore, whose laws have a particular purpose, the question of the right of superiority and of freedom is only secondary. The possible superiority of one person over another is not considered as a right with its own value but as a means to the end of the laws themselves, that is, to the protection `of the safety and ownership of families'. Patria potestas is viewed in this way: the child is entirely or partly freed from this authority when it is no longer necessary either for the child's safety as initiator of a future family, or for the preservation of his material goods.

747. Hence, the legislation of present civil societies does not claim to include and express in numbered articles the whole of rational law.

748. This law is written on the human heart as it has always been, not on paper. It cannot be abrogated, but it is possible for it not to be sanctioned externally. Civil society takes only a part of this law to which it adds the weight of its sanction without prejudice to the part outside the codes.

749. As long as child and father, or the one who takes the place of the father, are in agreement, positive laws do not intervene: father and child, adult and baby, are all subjects of the natural Right not written in codes. No law prohibits a child from living subject to his father by nature or from love, even for the whole of his life.

750. But does the civil law intervene when disagreement arises between father and child?

751. Not always. The disagreement must be such that it harms each particular good which positive law intends to defend, that is, the safety or the ownership of one of the two parties considered as elements of families. For this reason, many disagreements between fathers and their children begin and end within the home without any intervention of public laws. But this is not the case if the father and child harm one another or threaten harm. The law would intervene here because safety (the purpose of the law) would be in danger. Nor is it the case when the father threatens to squander the child's substance, that is, the substance of the child's future family. As soon as the civil court became aware of this, it would protect the child by law, declare the father excessive and take both father and child under its protection.(184)

752. For this reason, the Council of State opposed discussion of the first article under the title of patria potestas in the Napoleonic code, which said: `A son must always honour and respect his father and mother.' (185) According to the Council the article seemed to concern a matter outside legislation.(186) No one denied that the article did not belong to legislation; on the contrary, that appeared clear to all. The article was retained however so as to serve as a point of reference for judges in certain cases.(187)

753. Civil legislation, therefore, in its present state has only a limited, not a universal purpose. It intervenes only when required by the limited purpose which the law itself has determined.

754. Its regulations must be understood in this light. For example, when the law frees the child from patria potestas, we must not think that the child is completely freed from all this authority. We must simply understand that if the child requests freedom, the law grants and upholds the request, but only relative to the acts the law intends, that is, civil life, physical freedom and material ownership. The law is neutral relative to all else.(188)

755. Rational law must therefore rule alongside positive law in all those parts which the latter completely abandons to the former.

756. Even when the civil law helps the father by publicly penalising the child, it is not properly speaking concerned with the paternal right but with the child's good, in which society protects its own hopes.

757. All these considerations significantly limit the questions we have dealt with. They show that we must not require from civil laws a sanction of the whole of rational Right in all its length and breadth, but only of that part which the laws intended to sanction without prejudice to the rest of rational Right.

758. This part is concerned with the conclusion of contentions in the most equitable way and for the greatest good of the new families, of which the children are the precious seed.

759. Legislators had to allow for contentions between children and true fathers or foster-fathers. Here, to prevent its further complication by other elements, I take for granted that the question concerns only a foster-father.
In this kind of contention the child requests his freedom from his foster-father. Natural Right requires the contention to be settled peacefully and justly, and if this is not possible, the case must be handed to arbitrators trusted by both. When the arbitrators have been chosen, the two parties must accept the judgment handed down. The one whose right is lost must accept the decision, because the case was submitted and had to be submitted by him to arbitration. There are therefore, even in natural Right, cases where a moral-jural obligation to cede part of one's own right is present.

We must conclude therefore that human beings have decided to form laws and submit themselves to them for the sole purpose of restricting and reducing as much as possible the portion of rational right which jural obligation required them to sacrifice or alter in any given case. They asked themselves the following question: `Will a smaller portion of our natural rights be altered by our use of discussion and constantly new judgments to settle contentions, or by establishing fixed judges, common to all, who are obligated to judge according to fixed laws?' The common sense of all peoples decided in agreement with the fact itself: `It is very probable that our rights will be changed less if contentions are settled by fixed judges, fixed laws and judgments strengthened by common force, than by acting in any other way.'

760. Common sense was undoubtedly correct, because permanent judges are impartial, and gain more competence and experience as they resolve controversies. And permanent laws are also useful because they provide instruction for judges, and reduce arbitrariness which is so easily found in unrestricted decisions.

761. Relative to the laws therefore, the problem consisted in knowing `whether that portion of rights whose obligatory change was imposed by rational Right would be more probably reduced to the minimum if permanent judges were allowed to pronounce decisions according to their own understanding or by following fixed laws.'
Here, too, the answer is clear: fixed laws guarantee rights much more than judgments made without them. And even though, despite fixed laws, a portion of rights must be changed (rights can never be lost), it is very probable that the altered portion is far less than it would be otherwise.

762. Consequently we all have a jural obligation to obey fixed laws, because we are each obliged by rational Right to submit in the way most equitable and advantageous for all in solving questions.

763. Let us return to the legislators chosen to make laws for the settlement of contentions about freedom requested by a child from his guardian or foster-father. We shall try to express their problem in clear language.

764. We have said that legislators cannot intend to deal with all possible cases of conflict between a child and his guardian, but only with those concerning both the safety of the two parties to the quarrel and the greatest good of the future family of which the child is the seed.
Legislators therefore do not intend to defend any abstract right of the guardian's superiority, but only 1. the quantity of his natural right of superiority which can safeguard him and protect his external goods from his child's waywardness; and 2. the quantity which helps rather than harms the child and his future family.

765. The guardian's or foster-father's right of superiority extends even further, that is, to acts which are indifferent to the child's good and his future family and at the same time are not necessary for the guardian's safety and the defence of his property. But even these acts do not come within the scope of the legislators; they are natural and rational Right which is not written into laws nor sanctioned by them.(189)

766. Within the limits restricting the purpose of the intended laws, the legislators' problem is to determine what laws must be established to safeguard the greatest possible portion both of the superiority they wish to guarantee for the foster-father, and of the freedom they wish to guarantee for the child. They know that in solving the various contingent contentions a portion of the right of superiority on the one hand and of the right of freedom on the other is inevitably lost. Their general problem however is to determine laws which would reduce to a minimum the portion of these rights which may be lost.

767. But this gives rise to another, more definite problem for the legislators: will the superiority they wish to guarantee to foster-fathers and the freedom they wish to guarantee to the children continue to be guaranteed if they allow judges to decide of themselves the time when children have naturally attained the sufficient level of knowledge of the consequences of their actions and can therefore be allowed to act for themselves?

768. As I have said, the problem is answered by the common sense of peoples which preferred the system of fixed ages. Common sense reasonably feared the arbitrariness of judges which, without the establishment of laws, would have had a wider field in which to act. Because common sense had not yet been able to find safe and clear indications of the moment each child attained command of its freedom, and at what level indications which would have excluded arbitrariness on the part of judges - it considered fixed ages, which would have eliminated this danger, as the lesser evil.

769. It is true, of course, that legislations which depend on this method use it more or less perfectly. It is also true that legislations which gradually introduce the child into its exercise of freedom by dividing the acts of a child's jural freedom into many categories and assigning many ages corresponding to these different categories, are closer to nature which makes the child enter gradually into possession of itself.

770. Finally, it is true that legislations which are able to establish wisely a greater number of exceptions to the law of age, increasingly reduce the imperfection of the law for particular cases.

771. Civil laws are perfected therefore by prudent knowledge of the rate of development of young people, according to the state of the nation receiving the laws (a state which varies with the times) and by care that the advantages accruing from gradual perfection of the laws is not overridden by the disadvantages arising from their great number.

(155) SP, bk. 1, c. 3.

(156) Zeiller maintains that we cannot acquire the right of seigniory over others without the consent of their will (Diritto naturale privato, §93), and many other authors are of the same opinion. But my argument would seem to indicate that some rights over human beings (not over persons, strictly speaking) are acquired naturally without their consent, that is, by natural titles similar to those by which we acquire ownership of things.

(157) In the Latin expressions, compos sui, compos animi, compos mentis, etc., which mean a person is `sane', we find a witness in the common sense of antiquity to the teaching I am expounding. Compos means `who has power over', and compos sui, compos animi, etc., mean `the one who has power over himself, his spirit, his mind, etc.' This clearly shows that anyone who could not use his mind was considered as having no dominion or seigniory over himself. In the etymological sense of these expressions, therefore, the seigniory is vacant and can be occupied just as unpossessed things can be occupied. However this can be done only with due regard to the person, whose essential and entirely free act never ceases.

(158) What has been said so far about our care for children who have not come to the use of reflection clearly indicates 1. that many enactments of civil law concerning the care and rearing of children are founded on rational Right; and 2. that when we apply in practice what has been said, we see the circumspection and limitation necessary for drawing up such laws so that they can be beneficial and within the limits of rational justice. - The political reasons put forward in order to adapt this important part of legislation in a particular way may indeed be valid, but only on condition that they do not contradict rational Right.

(159) Hence Gratian's law, although intended to save abandoned babies, seems unjust. He had decreed that an abandoned baby should be a slave of the person who had taken care of it and fed it. Cf. Bodino, bk. 1, c. 5.

(160) By `simple affections' I mean to indicate that special class of benevolent affections manifested naturally by means of the real relationships between natures. These affections are raised to the dignity of moral duties because the moral law commands that the relationships between us and other natures be maintained. This precept concerns the `respect merited by the nature of things generally and by the intrinsic order of nature'; it does not concern `the respect merited by some particular being'. To see the truth of this, let us suppose that someone returns hatred for his benefactor's love but hides the hatred and feigns love. In addition, he lavishes every care on the hated person for secondary reasons of self-interest. He sins, even though the hatred in his heart does no external harm to his benefactor, who is ignorant of the hatred and believes his own love is reciprocated. Hence, the duty of gratitude does not have its source in the author of a kind act. Rather there is in the nature of things a real relationship between hearts and intelligent wills, a relationship which we cannot violate if we respect nature, that is, being and its order. Reflections such as these should, it seems to me, occupy the minds of writers on ethics so that they can separate into distinct classes duties imposed by the `intrinsic order of things in general' and duties imposed by the `exigencies of particular beings'.

(161) On gratitude cf. PE, 200-205.

(162) This is another example of the different modes which the same specific right can take. We spoke about this in ER, 83 ss.

(163) Cf. AMS, 603-611.

(164) All civil codes suppose that the natural dominion of one human being over another has a changeable limit. We can see this clearly in the regulations governing patria potestas. These increase, decrease and terminate relative to the offspring's degree of need, or varying ability to govern himself. The same must be said about the regulations concerning husbands, teachers, guardians and all those who in fact exercise power over their fellows.

(165) This right was recognised in the most distant past. Among the Thebans, children of fathers unable to care for them were consigned by the magistrate to citizens who looked after them on condition that when the child became adult it remained in the service of his guardians for a certain number of years as compensation for the care received.

(166) Cf. ER, 252-255.

(167) Cf. what I have said regarding this last clause in CS, 471-654.

(168) For the difference cf. 895 ss.

(169) This ability to act reasonably pertains to prudence, not to morals, as we have observed. Wayward people abuse their jural freedom, but we cannot say they lack it. They do not lack the rational power but the will to do good. They can be restrained from the misuse of their right but not deprived of the right itself.

(170) In the Austrian code, babies, children who have not reached puberty and minors are those who have completed their 7th, 14th and 24th year respectively (§21). According to this code, patria potestas ceases with minority at the end of the 24th year (§172). Nevertheless the code allows that patria potestas may need to continue (§173), and also that the child can be emancipated earlier (§174). Other codes fix different stages in addition to the three mentioned above. According to the Albertine code, the child always remains under patria potestas except when there is fault on the part of the father or inability to exercise his authority (in which case the court decides emancipation, §239), or when the father himself gives the child his freedom by tacit or express consent. The child's age is fixed at 18 years (when a minor can be enabled to administer his goods, §353-366), for the validity of the father's consent through the child's acceptance of it (§238). The father's tacit consent however has effect only when the child has passed the age of majority by 5 years, that is, has completed his 26th year (§242). According to the Albertine code, patria potestas, which never ceases of itself while the father is alive, decreases in its acts and becomes more expansive as the child grows older.

The code's authors recognise that the father's right to punish changes with the child's age, and determine two ages for these changes: the 16th (§215) and the 25th year (§116). The 16th year is also laid down as the age for the exercise of the right to make a will (§701): completion of the 25th year for the exercise of the right to leave the paternal home (§213). This right however can be anticipated (§212) or postponed (§213) by a court ruling. The Albertine code also fixes the 30th year for the restriction of patria potestas; after this, the father's right of usufruct of the goods coming to the child under his authority (§224) ceases. But if the child should marry, usufruct ceases on completion of the 25th year in the case of males, and of the 21st year for females (§225).

The code of the Canton of Ticino makes patria potestas cease: of itself, at the child's 25th year (§104); with the father's express consent, at the 18th (§105), and with the father's tacit consent, on completion of the 20th (§106), which is the age of majority for the child.

(171) This is another example of the different modes which can be taken by the same right according to circumstances. Cf. ER, 80 ss.

(172) The Albertine code, following the French, makes the completion of the 21st year the age of majority, but the preceding legislation of the royal constitutions fixed it for the 20th year. This seems to be an anomaly of the law of human progress, which evidently requires that the development of the human person (within certain limits) should accelerate.

(173) Knowing the consequences of our actions is the same as knowing good and evil. Right exists only when its object is a good (the third constitutive element of right). Thus anyone who is able to judge more accurately what is good has a greater extension of rights and a wider sphere in which to exercise the moral faculty called right which he possesses .

(174) For example, Austrian legislation defines people who are under the special protection of the law as those who `cannot know the consequences of their actions' (Civil Code, §21).

(175) Jn 6: [38].

(176) The amount of knowledge which civil laws require and suppose to be equal in all human beings is expressed by the phrase `common sense'. This amount of knowledge and use of intelligence is generally sufficient to enable us to judge the immediate or quasi-immediate effects of our actions and so either avoid any direct harm caused by them or directly profit from them. All this is necessary in order that we can sufficiently maintain our individual self, our freedom, family and external property, and acquire what is necessary for our own and our family's preservation. Many people, however, are incapable of calculating this maintenance and preservation beyond the immediate or quasi-immediate effects of their actions. It often happens therefore that they are subject to misfortunes resulting from remote, unforeseen effects of their own behaviour (which explains the origin of the working class and the poor). Civil laws have not yet cast their sights so far ahead but the time will certainly come when they will do so.

(177) A person might have no interest in governing himself through laziness or cowardice, or timidity of spirit. This is another case in which he foregoes his right.

(178) Cf. ER, 322-323.

(179) Note that we are speaking about harmful consequences, not about the violation of our ownership. In fact, harm can result from another's action without the perpetrator entering into the sphere of our ownership through his action. Let us suppose that someone has informed the bank of disastrous political news which lowers the value of shares. Because I have many shares, I suffer serious harm, but I cannot say that I have been robbed. If the news is true, I cannot really complain and I cannot justly stop the news spreading. If I did so, I would be guilty of unjustly harming those who were still ignorant of the news. But this is not the case we are discussing. To deal with our special case we need to suppose the accidental events which accompany bank business. I know, let us say, that a certain, very credulous gentleman will be going to the bank today and quite innocently will relate false or at least unproven news - he has heard it by chance or some speculator has told him. I am aware that if the news spreads it will cause panic among the buyers with a consequent drop in the value of the shares, of which I need to sell a certain number the same day. I cannot interrogate the gentleman or have no time to do so. Instead I take him home and make sure he is occupied, while I go off and sell my shares without loss. According to rational Right, can I act in this way? This is the question we are dealing with.

(180) Cf. ER, 322-328.

(181) SP, bk. 1, c. 2, 12; bk. 3, Intro.

(182) Cf. what I have said in SP, bk. 1, c. 9.

(183) Cf. SP, bk. 1, c. 9.

(184) For the same reason civil laws distinguish the father's goods from the child's. The laws consider the child as the seed of a future family whose possession they protect - the child is not considered solely as part of the paternal family.

(185) Art. 371.

(186) The same difficulty arose for art. 212 concerning the moral duties of spouses.

(187) Cf. Report to the Court, made by the Tribune Vesin on behalf of the Section of Legislation on the law relative to patria potestas.

(188) In the Napoleonic code, the son attains majority at 21 years of age, and with this is declared to be outside patria potestas (§372). However, he may not marry without parental consent until his 25th year (§148). But this is a contradiction: parents still retain a part of their authority even after their child is declared free of that authority. To save the code from this contradiction, we have to say that patria potestas means the father's general authority, not a particular authority relative to certain determined points covered by laws. These equivocations, ambiguities and apparent contradictions will continue as long as legislators do not express their intentions clearly.

(189) Natural acts of superiority not sanctioned by civil law must retain some natural sanction. In my opinion a legislator would definitely be erring whose laws supported the appeal of even an elderly child on whom the father had inflicted some punishment for a just motive. We need to note once again that declaring `a child free from patria potestas at a certain age' seems ambiguous if left unexplained and unqualified.

Chapter 6